Posts Tagged: "China"

This week in IP news: the CASE Act, which would create a small claims system for copyright claims, is reintroduced in both houses of Congress; Qualcomm earns a massive $4.5 billion payment from its settlement with Apple; the U.S. Supreme Court seeks input from the Solicitor General on Oracle v. Google; and China amends its trademark law, increases copyright actions, and earns more than one-third of all 5G SEPs.

On April 25, the Office of the U.S. Trade Representative (USTR) released both its annual Special 301 Report and an updated Notorious Markets List, each of which highlights international issues facing U.S. intellectual property owners living in the United States and abroad. The Special 301 Report this year includes 36 countries that have been placed on watch lists for either inadequate IP protections or denying IP rights to U.S. rights holders. Similarly, the Notorious Markets List includes a non-exhaustive collection of online and physical markets that are alleged to have contributed to piracy and counterfeiting activities around the world. The Special 301 Report makes it clear that China is the source of greatest concern for U.S. owners of all types of intellectual property. The report’s executive summary notes that China remains on the USTR’s Priority Watch List for various reasons, including forced tech transfer, discriminatory licensing practices and high-volume counterfeit manufacture. Other countries included on the Priority Watch List are India, where the national government has restricted transparency on state-issued pharmaceutical manufacturing licenses and expanded patentability exceptions for rejecting pharmaceutical patents; Indonesia, where concerns have been raised over patentability criteria and compulsory licensing; and Saudi Arabia, which has failed to address concerns involving lack of IP protection for pharmaceuticals and the illicit pirate service BeoutQ.

Capitol Hill remains quiet this week as both the U.S. House of Representatives and Senate enter a second straight week of work periods. Technology and innovation events continue, however, at the many policy think tanks residing in Washington, D.C. Monday starts with a discussion on U.S.-China relations at the Brookings Institution, while a pair of events at the Cato Institute look at whether human ingenuity can improve resource availability in the face of a growing world population and the effects of artificial intelligence (AI) on the future of work. In the middle of the week, the Center for Strategic and International Studies hosts two events exploring threats to the government’s software supply chain, as well as counterspace threats faced by the U.S. The week wraps up on Friday with a Consortium for Science, Policy and Outcomes event that explores the positive effect that creative play can have on business innovation.

British automaker Jaguar Land Rover (JLR) has been engaged in a multi-jurisdiction battle against Chinese automaker Jiangling Motors (Jiangling) over JLR’s assertions that Jiangling copied distinctive design features of JLR’s RANGE ROVER Evoque (EVOQUE) in the LANDWIND X7 vehicle. JLR previously successfully took action in Brazil and the European Union, resulting in injunctions against the sale of Jiangling’s LANDWIND vehicle in those jurisdictions. JLR’s latest efforts has yielded additional success against Jiangling’s sale and production of the LANDWIND X7 in China, Jiangling’s home base. On March 13, the Beijing Chaoyang District Court in China found Jiangling liable for unfair competition in connection with the sale and manufacturing of the LANDWIND X7, finding that certain design features of the LANDWIND vehicle are “essentially identical” to JLR’s distinctive design features for the EVOQUE. This decision is the first case under China’s 2017 Anti-Unfair Competition Law to find in favor of a foreign company in the auto industry.

While a preliminary trade deal seems to have been struck between China and the United States over tariffs, the two sides have yet to seriously address the toughest and perhaps most economically crucial issues on the table: China clinging to a tech policy based on systematic theft of U.S. intellectual property (IP), forced technology transfer, and cybertheft.President Trump has paid lip service to the need for any deal to include IP protections, and China responded on March 14 by rushing a law that would, according to CNBC, “prohibit the forced transfer of technology from foreign-invested businesses in China, step up protection of intellectual property and claim to give the companies equal footing with domestic players.”  Nevertheless, China watchers are skeptical that these commitments remain cosmetic, while it remains clear that Trump has focused his negotiators chiefly on those things nearest and dearest to his heart: physical goods and tariffs. As talks move forward, the question remains—how will U.S. Trade Representative (USTR) Robert Lighthizer resolve these challenges for the benefit of IP holders?

In an expected move, Huawei filed a lawsuit against the United States in the U.S. District Court for the District of Texas on March 6. Huawei Technologies v. U.S., 4:19-cv-00159, U.S. District Court, Eastern District of Texas (Sherman). In its mammoth 54-page complaint, the company alleges the United States and its agencies violated the Federal Constitution when it singled out Huawei in the 2019 National Defense Authorization Act (NDAA). U.S. authorities are concerned that China could use Huawei’s equipment to spy on communications networks. Having offices in Plano, Huawei had jurisdiction to file in the Eastern District of Texas, widely recognized as a plaintiff-friendly court for technology matters. But despite its considerable resources and legal muscle, Huawei will have a challenging time proving its case in court.

On February 12, the China Trademark Office (CTMO) published a draft regulation titled “Several Provisions on Regulating the Application for Registration of Trademarks” for public comment. This draft is the first attempt at providing a vetting system to spot and reject fraudulent trademark applications by malicious squatters and punishing bad actors and their trademark agents for such activity.

This week in Other Barks and Bites: the Senate Judiciary Committee plans to go after drug patents to promote access to generic medications; Apple faces another patent suit in the Eastern District of Texas in the midst of attempts to remove its business presence from the district; China enacts a code of conduct for patent agents; Samsung and Huawei enter into an agreement to terminate their multi-year legal battle in the Android sector; the makers of Fortnite face yet another copyright suit over dance moves; Warner Bros. strikes down a Kickstarter campaign intending to distribute edited versions of The Departed; and a Delaware jury upholds cholesterol treatment patents owned by Amgen.

In the People’s Republic of China, the China National Intellectual Property Administration (CNIPA) administers the registration of trademarks for entities seeking to sell goods or services within the country. Trademark applicants who are dissatisfied with an adverse decision at the CNIPA’s Trademark Office can ultimately appeal the decision to the specialized intellectual property court in Beijing, which has exclusive jurisdiction over appeals of CNIPA trademark actions. However, recent analysis from IP professionals working in China has revealed that foreign companies, especially U.S. corporations, now face heightened requirements for submitting legal documents required when appealing Trademark Office decisions to Beijing’s IP court.

5G, or 5th generation wireless communication, has reached the point of determining which core technologies will be used. Suddenly, decisions about which companies will be picked are upon us. And the stakes could hardly be higher — for the companies and for our national (and American citizens’) security. The two businesses in the ring, Qualcomm and Huawei, each find themselves in a tough fight to dominate the IP-based 5G technology on which countless devices—from automobiles to mobile phones to who-knows-what—will interoperate. The 5G platform will empower the Internet of Things, artificial intelligence writ large and more—a technological advance with tremendous potential as well as tremendous risk exposure to spies, hackers and such. Both companies face hurdles from the U.S. government. One makes sense. The other makes no sense.

Today marks the return of our Other Barks & Bites feature, which will profile a collection of news headlines from around the IP world and across practice areas every Friday. This week, the patent spat between Apple and Qualcomm heats up at the PTAB; China’s intellectual property court at Beijing shows signs of heightened requirements in trademark appeals for foreign entities; and the European Union delays debate on copyright reforms that would affect major tech firms that aggregate news and videos online.

Although many readers might be more familiar with patent infringement claims asserted in Section 337 actions at the ITC, BIC Vice President and General Counsel Steve Burkhart notes that trademark and trade dress infringement claims in a Section 337 context aren’t terribly different. “We’ve had our three-dimensional trademark registration for decades,” Burkhart said, adding that one of the defendants in the ITC action was familiar with BIC’s trademark because it was cited as a basis for denying their own trademark application filed with the U.S. Patent and Trademark Office. “Quantitatively, you may see more Section 337 filings on the patent side but there are many examples in the patent and trademark areas where filings encounter denials because of prior art,” Burkhart said.

Although US-China tensions currently exist in the areas of trade tariffs, it appears overseas entities, especially entities within China, remain highly interested in investing and dealing with US businesses. Large Chinese tech companies raise questions related to export control, and specifically whether inventions designed in the US, implemented in another country such as in Europe, and adopted in China were subject to export control. One obvious category subject to export control is military applications. However, inventions where civilian applications predominate are more difficult to assess. The safe assumption is that when a portion of the invention is conceived in the US, the invention is subject to export control.

On December 10, 2018, a Chinese court granted Qualcomm an injunction against Apple that stops sales and imports of most iPhones in China.  On December 12, Apple announced that as a result of the Chinese injunction, “early next week we will deliver a software update for iPhone users in China addressing the minor functionality of the two patents at issue in the…

This week on Capitol Hill, the House of Representatives will host almost every hearing that will relate to technology and innovation, including three hearings originally scheduled for last week but moved due to the national day of mourning for former President George H. W. Bush. Hearings in the House will focus on topics including advanced fuels for next generation engines, efforts to speed the development of innovative medical treatments, legislation for freeing up broadband Internet spectrum for public use and government IT acquisition processes. Over in the Senate, there will be a hearing in the middle of the week on Chinese espionage that will explore how entities in that country have been involved in cyberattacks and Internet piracy against American targets.