Patent Litigation in China 2e

Name: Patent Litigation in China 2e
Brand: OUP Oxford
Price: 150.0 EUR
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Douglas Clark(Author)

OUP Oxford (Publisher)

1st Edition

Published on 6. August 2015

393 pages

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978-0-19-103650-7 (ISBN)

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Content

Cover
Patent Litigation in China
Copyright
Dedication
Contents
Table of Cases
Table of Legislation
A note on translations
1 Introduction
1.1 Intellectual Property Rights in China
1.2 The Scope of this Book
1.3 History of Patent Law in China
1.4 Modern Patent Law
1.5 Patents in China
1.6 Weaknesses in the Chinese Patent System
2 Sources of Patent Law
2.1 Principal Legal Provisions Covering Patent Law
2.2 Other Relevant Legislation
2.3 Amendments to the Patent Law
2.4 Renumbering of Articles after Amendment
2.5 Transitional Provisions Applying to the Most Recent Amendments
2.6 Case Law
2.7 Supreme Court Judicial Interpretations and Opinions
2.8 Interpretations and Opinions of the Lower Courts
3 Introduction to China's Administrative and Judicial Patent Systems
3.1 Introduction
3.2 Administrative System
3.3 Judicial System
3.4 State Intellectual Property Office
3.5 Patent Re-examination Board
3.6 Structure of the Chinese Judicial System
3.7 Intellectual Property Chambers
3.8 Courts that Handle Patent Cases
3.9 Appeals
3.10 The Judiciary
3.11 Adjudication Committees
4 Administrative Enforcement
4.1 Administrative Enforcement
4.2 The Procedure for SIPO Administrative Actions
4.3 Mediation by SIPO
4.4 General Administration for Customs
5 Patents
5.1 Introduction
5.2 Types of Patent
5.3 Filing Requirements
5.4 Term of Protection
5.5 Grace Periods
5.6 Patent Examination Guidelines
5.7 Preliminary Examination
5.8 Substantive Examination
5.9 Rejection
5.10 Re-examination
5.11 Appeal of Re-examination Decisions to the Court
6 Grounds for Invalidating a Patent
6.1 Introduction
6.2 Statutory Grounds
6.3 Definitions of Invention and Utility Model
6.4 Confidentiality Examination
6.5 Novelty
6.6 Inventiveness
6.7 Practical Applicability
6.8 Sufficiency of Disclosure
6.9 Claims Must be Supported by the Description
6.10 Amendments
6.11 Claims Must Contain the Essential Technical Features
6.12 Divisional Applications Must Not Go Beyond Scope of Original Application
6.13 Law, Morality, or Public Interest
6.14 Breach of Law or Regulations Relating to Genetic Resources
6.15 Prohibited Inventions
6.16 Earlier Application
7 Patent Revocation Proceedings
7.1 Introduction
7.2 Application for Revocation
7.3 Invalidation Procedures
7.4 Grounds for Invalidation
7.5 Evidence
7.6 Oral Hearing
7.7 Appeal of PRB's Invalidation Decision
7.8 Effect of a Final Invalidation Decision
8 Civil Litigation in China
8.1 Introduction
8.2 Summary of Civil Proceedings
8.3 Judging Panel
8.4 Filing Fees
8.5 The Complaint
8.6 Acceptance of the Complaint
8.7 Service of the Complaint
8.8 Defence
8.9 Proceedings in the Absence of a Party
8.10 Mediation
8.11 Evidence Collection and Admissibility
8.12 Evidence Exchange
8.13 Trial
8.14 Judgment
8.15 Appeals
8.16 Effect of an Appeal
8.17 New Evidence on Appeal
8.18 Review of the Decision by the Supreme Court or Procuratorate
9 Preliminary and Interlocutory Issues
9.1 Introduction
9.2 Powers of Attorney
9.3 Limitation Periods
9.4 Jurisdiction
9.5 Search Reports for Utility Model and Design Cases
9.6 Pre-trial or Interim Injunctions
9.7 Asset-freezing Orders
9.8 Declaration of Non-infringement
9.9 Stay of Infringement Proceedings
10 Evidence
10.1 The Importance of Evidence
10.2 Permitted Evidence
10.3 Best Evidence Rule
10.4 Notarized Evidence
10.5 Foreign Evidence: Notarization and Legalization
10.6 Foreign Language Evidence
10.7 Expert Evidence
10.8 Evidence Preservation Orders
10.9 Evidence Collection by the Court
10.10 The Burden of Proof does not Shift if the Other Party does not Comply with an Evidence Request
10.11 Penalties for Destroying Evidence
10.12 Investigations by the Parties
10.13 Inadmissibility of Illegally Obtained Evidence
10.14 Admissibility of Pretext or Trap Purchases
11 Patent Infringement Litigation-Invention Patents and Utility Models
11.1 Introduction
11.2 The Rights of Patentees and Related Injured Parties to Bring Action
11.3 Acts of Infringement
11.4 Indirect Infringement
11.5 Joint Infringement
11.6 Reverse Burden of Proof if the Patent Relates to a Method of Making a New Product
11.7 Claim Interpretation
11.8 Doctrine of Equivalents
11.9 File Wrapper Estoppel
11.10 Interpretation of Claims to Rectify Mistakes
11.11 Proving Infringement
12 Defences
12.1 Types of Defence
12.2 Invalidity
12.3 Non-infringement
12.4 Prior Art Defence
12.5 Exhaustion of Rights
12.6 Prior Use Defence
12.7 Temporary Entry into China
12.8 Research and Development
12.9 Clinical Trials
12.10 Innocence
12.11 Limitation Defence
13 Design Patents
13.1 Introduction
13.2 Stay of Infringement Proceedings
13.3 Grounds for Invalidating Design Patent
13.4 Definition of Design
13.5 Design Rights shall not Belong to an Existing Design
13.6 Identical or Not Substantially Different Designs
13.7 Conflict with Prior Legal Rights
13.8 Two-dimensional Designs that Mainly Serve as Indicators
13.9 The Design Drawing should Clearly Identify the Design
13.10 Amendments Beyond the Scope of the Initial Application
13.11 Contrary to Law or Social Morality, or Detrimental to the Public Interest
13.12 Identical Invention-Creation
13.13 Infringement of Design Patents
13.14 Designs Incorporated into Other Products
13.15 Designs that Need to be Assembled or have Variable States
13.16 Defences
13.17 Prior Art Defence
13.18 Damages
14 Remedies
14.1 Remedies Available in China
14.2 Injunctions
14.3 Circumstances in which an Injunction will not be Granted
14.4 Reasonable Fee for Pre-grant Use
14.5 Damages for Post-Grant Infringement
14.6 Eliminating Ill Effects
14.7 Apology
14.8 The Enforcement of Damages Awards
14.9 The Enforcement of Injunctions
15 Anti-Monopoly Law
15.1 Introduction
15.2 Introduction to the AML
15.3 Bodies that May Enforce the AML
15.4 Anti-Monopoly Provision relating to IP and Patents
15.5 Major Patent-related Cases under the AML
16 Patent Law and Standards
16.1 Introduction
16.2 Standard-Setting
16.3 Anti-Monopoly Law and Standard-Setting
16.4 Patent Infringement Claims based on Standards
17 Remuneration for Employee Inventions
17.1 Introduction
17.2 Rules Governing Employee Inventions
17.3 Employment Agreements or Company Regulations
17.4 Right to Bring Action if Remuneration Not Paid
18 Patent Litigation in Hong Kong
18.1 Introduction
18.2 The Hong Kong Legal System
18.3 The Hong Kong Patent System
18.4 Obtaining Patent Protection in Hong Kong
18.5 Proposed Changes in the Law
18.6 Issues with Re-registrations of Chinese Patents
18.7 Amendment to Patent Post-Grant
18.8 Court with Jurisdiction
18.9 Infringement Proceedings
18.10 Relief for Infringement
18.11 Split Trial on Liability and Damages
18.12 Grounds of Defence
18.13 Challenging Validity of a Patent
18.14 Actions Related to PRC
18.15 Conclusion
19 Concluding Remarks
Appendix 1 Patent Law of the People's Republic of China
Appendix 2 Implementing Regulations of the Patent Law of the People's Republic of China
Appendix 3 Interpretation by the Supreme People's Court on Several Issues Regarding Legal Application in the Adjudication of Patent Infringement Cases
Appendix 4 Interpretation by the Supreme People's Court on Several Issues Regarding Legal Application in the Adjudication of Patent Infringement Cases (II) (2014) (Draft)
Appendix 5 Several Provisions of the Supreme People's Court on Issues Relating to Application of Law to Adjudication of Cases of Patent Disputes
Appendix 6 Several Provisions of the Supreme People's Court for the Application of Law to Pre-trial Cessation of Infringement of Patent Right
Appendix 7 List of Courts with Jurisdiction to Handle Patent Cases
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Patent Litigation in China 2e

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