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Trial for Patent Tort and Explanation for Claims in Patent

Du Yajing, Sam & Partners Law Firm (Beijing Office) “A cup composed by a cover, an outer, a belly and a magic body, the special call-up of which are as follows: the magic body is of a shape like a roof tile, which is fixed in the middle of the belly, one half of the circle of the magic body is the N pole, the other is the S pole.” The sentence above is an example of a claim of a patent, including the title, the preface part and the special call-up part. There are two steps in the trial for patent tort, the first of which is to interpret the claims and make sure the range; the second of which is to compare the claims and the object or method which has been accused. Under an ordinary condition, the second step must based on the first one. Therefore, the explanation of claims is of the most significant effect. In the trial for patent, whom the right to interpret the claims belongs to? The writer of this article come to a conclusion that it belongs to the judge. However, when the right is performed, the judge ought to suggestions come […] 阅读更多

Renewal of trademark in China

The registered trademark is valid for 10 years calculating from the date of approval. The registrant shall apply for renewal in six (6) months before the expiry date if s/he decides to renew his/her registered trademark. If the registrant fails to do so, s/he could still renew his/her registered trademark in six (6) months after the expiry date provided that If no application for renewal is filed in six (6) months after the expiry date, the Trade Office will cancel the registered trademark. The original registrant has to re-apply if s/he wants to keep his/her ownership of the trademark. 阅读更多

Re-examination of rejected trademark application in China. (Supplementary procedures)

(1) Abstract Article 21 of Implementing Regulations of the Trademark Law states that the Trademark Office shall, in accordance with the Trademark Law and these Regulations, examine the applications for the registration of trademark it has accepted. Applications which conform to the relevant provisions, or those for the registration of trademarks in respect of a part of the designated goods which conform to the relevant provisions, shall be preliminarily approved and published. Applications which do not conform to the relevant provisions, or those for the registration of trademarks in respect of a part of the designated goods which do not conform to the relevant provisions, shall be rejected. The Trademark Office shall notify the applicant in writing and explain the reason for the rejection. Where the Trademark Office has preliminarily approved applications for the registration of trademarks on a part of the designated goods, the applicant may apply for the abandonment thereof before the date of expiration of the opposition period; where the applicant abandons the registration of trademarks in respect of a part of the designated goods, the Trademark Office shall withdraw the preliminary approval, terminate the examination procedure, and republish it. Therefore, this procedure is a supplementary procedure. […] 阅读更多

Procedures of registration of trademark in China

In accordance with the Chinese laws, if natural persons, legal persons or other organizations need to obtain trademark for the products which they produce, manufacture, process, select or distribute or services which they provide, they should apply to the trademark office under the state administration for Industry & Commerce of the People’s Republic of China (“Trade Office”) for registration of trade. There are in total 45 classifications registrable products and services, 34 for products and 11 for services. Trademarks which are designated to be put on products are product trademarks. Trademarks which are designate to be put on services are service trademarks. A. Application for registration of trademark under the name of a legal person or other organizations requires the following documentations: 1. The logo of trademark 2. Applicant’s name and his/her address in both Chinese and English (the address has to be identical to the one on his/her business licence) and the registration number of his/her business licence. 3. Power of attorney 4. A notarized declaration of consent by the portrait right holder which agrees to produce the portrait as a trademark shall be submitted if the concerned trademark is a portrait. 5. The products and the services which […] 阅读更多

Search before the application for registration of trademark in China

It refers to a preliminary search as to find out if there is an existing trade mark which the applied trademark may contravene. The search could be carried out in two ways: 1. using the trademark search in the website of the Trade Office which provides free trademarks’ information; 2. entrust a trademark agency to conduct the trademark search and pay upon charge. At present, it takes approximately 2 years for an application for registration of trademark to be approved. If the application is rejected, the applicant would lose both the registration fee and the time needed for re-application. It is also doubtful whether the re-application would be approved. In view of this, the applicant should conduct the trademark search to ascertain if there is any existing conflicting trademark and decide the next move accordingly. 阅读更多

Knowledge of trademark registration in China

In accordance with the Chinese laws, if natural persons, legal persons or other organizations need to obtain trademark for the products which they produce, manufacture, process, select or distribute or services which they provide, they should apply to the trademark office under the state administration for Industry & Commerce of the People’s Republic of China (“Trade Office”) for registration of trade. Application for registration of trademark in its narrow sense only refers to application for registration of products’ or services’ trademark, application for international registration of trademark, certification of application for registration of trademark, collective application for registration of trademark, application for registration of special logos. Application for registration of trademark in its broad sense shall, in addition to its narrow definition, includes application for the change, renewal or assignment of the registration, application for complaints, application for filing trademark licence record and the handling of other trademark related matters. Foreigners or foreign enterprises that have no residual habitat and business office in China have to entrust a trademark agent to apply for registration of trademark in China. Foreigners or foreign enterprises shall make enquiries to the trademark agency as to what documents are required for registration, what procedures are […] 阅读更多

Filing of Patent Applications in China by Foreign Enterprise or Individuals shall be Entrusted with a Patent Agency

According to the Patent Law of People’s Republic in China, where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent in China, or has other matters related to patent to be dealt with, he or it shall appoint a patent agency designed by the State Council of the People’s Republic of China to act as his or its agent. 阅读更多

Patent License in the Patent Law of People’s Republic of China

Any entity or individuals who wish to utilize other’s patent must conclude patent license contract with the patentee and pay the patentee a fee for the exploitation of the patent. The licensee has no right to authorize any entity or individual, other than those referred to in the contract for exploitation, to exploit the patent. Contracts concluded by the patentee and other parties must be registered at the SIPO within 3 months from the date when the contract becomes effective. Bona fide third parties shall not be affected by unregistered patent license contracts. Although a written contract is not required in the Patent Law of People’s Republic of China, a patent license contract is one of the most complicated contracts. Nonetheless, it is preferable for parties to the contract to conclude a written contract. 阅读更多

Rules and documentations required for applying Patents in China

For those who apply for a patent for invention or utility model, a request, a description and its abstract, and claims shall be submitted. In the request, the name of the invention or utility model, name of the designer of patent, name and the address of the applicant and other relevant information should be included on such form. For description, details of the patent must be clearly and fully stated, in view of the current technological process in the relevant area. Supplementary graphs should be provided if necessary. It must be noted that for using new patents, supplementary graphs are compulsory. For abstracts, the documents should include a summary of the technologies used for developing or using new patent, and the document should adopt a graph for representing all the supplementary graphs provided in the explanation form. Regarding the application for rights of patent, the application should be based on the description for stating the scope of protection of the patent. On the other hand, when one is applying patents of exterior design, application form and graphs or pictures of the exterior design should be provided, with an explanatory note on the products (including information on the categories of such […] 阅读更多

The procedures for applying patent in China

1. The application procedures for patent on inventions: Application è Initial examination è Publication è Substantial examination è Grant of patent 2. The application procedures for patent on utility models and designs: Application è Initial examination è Grant of patent 阅读更多