Recent years have seen a surge in IP litigation in Chian. In 2011, there are 59,882 first-instance civil IP infringement litigation cases. In 2012 and in 2013, the increment of IP infringement litigation further jumps up to about 90,000 cases, a year. If taking account of IP administrative and criminal cases, the total IP litigation cases shall be over 100,000. Despite the fact that China still has less valid patents, trademarks, and copyrights than that of the US, Japan and Europe, Chinese IP litigation has already far surpassed that of the US, the former world leader for IP litigation. In fact, the number of IP litigation cases in China now exceeds that of the US, Japan and Europe as a whole, making China a "super power" of IP disputes.
At present, the scaled industrial companies in China, including foreign companies doing business in Chinese market, are less than one million. One million versus 100,000, the risk of being sued for IP infringement is about 10%. It is much higher than most of countries in the world.
Since the Chinese utility model and design patents are not substantially examined, there might be some patents, which are not qualified for patents or some are simply copies of prior arts. At present, the utility model and design patents still take 2/3 of the total granted patents and take about 80% of patent litigation. Therefore, a great portion of patent litigation is from those under-qualified patents. As a result, to certain extend, companies' normal and legitimate buniness are threatened and annoyed by them.
However, because of IP infringement activities are intangible, and the proving evidence are easily revised or destroyed, it is difficult to collect evidence when IP litigation occurs, especially for defendants. In patent litigation, it is difficult to convince examiners in the Patent Office and the judges in the courts that a technology is a prior art by “oral testimony”. A notable example is Schneider’s case.
Thus, there is a demand to make known information become a written document, and a hard evidence that shall be absolutely accepted by the authorities. The China-ippublication.net is constructed to meet the demand. Website publication is regarded as written literature. Written literature is always accepted by any authorities in China.
However, a vulnerable defect of website publication is that it is easy to be revised afterwards. In order to overcome the shortcoming of website publication, information published on China-ippublication.net shall be notarized. By notarization, the content and publication date shall be fixed.
Publication of minor technology improvements on the website may stop others from obtaining a patent for the improvements.
Once one makes an invention, theoretically, he could file for patent for his invention in any country that has a patent system. However, few of them file patent applications in all countries in the world for various reasons, mainly the economical reason. Publication of the invention on the website soon after filing a patent application in a country may put an obstacle for others in the way of getting patents for the same invention in other countries where he does not file for a patent for his invention. Bearing in mind that in most countries a patent application shall be published in 18 months, the patent application, because of not being laid open, will not affect others from filing a patent application for the same invention in other countries during the one and half year. However, publication of a patent application on the website soon after filing a patent in one country shall not affect the applicant from filing a patent in other countries, so long as he files in 12 months by claiming Convention priority.
Publication of a prior art on the website creates a physical evidence against any wrongly granted patents in any countries, at least in China. Chinese utility model patents and design patents are not substantively examined. There may exist quite a number of improperly granted patents.
Publication of a prior art on the website creates a reliable evidence for prior art or prior design defense in patent litigation.
Publication of a non-registered trade mark secures a prior use right of the mark.
It is not unusual that someone registers his competitor’s product model references as his trademark, even though such registration is forbidden by the Chinese Trademark Law. These improper registrations may threaten and present obstacles to business of those who use the product model references on their products or goods. To avoid these problems, those who use the product model references can publish them on the website, stating that it is the model number of his certain product, thereby preventing others’ improper registration thereof. If the product model reference was registered, the publication can be used as evidence to request revocation of the registered trademark.
Publication of an unregistered trademark using information on the website may serve as an evidence of actual use of the mark in China. In case someone registered the mark in China, the evidence can be used to support a revocation request.
Publication of a registered trademark on the website can serve as evidence proving using in China when someone tries to revoke the registered mark under the ground of non-use for three consecutive years.
Publication of a trademark on the website before filing the registration application may prove the prior use of the mark. Under the Chinese Trademark Law, in case the two applicants file, on the same day, registration applications for an identical trademark, the prior user of the mark gets the registration.
Publication of a trademark as early as possible, even before filing the registration application, may oppose others to register the mark as a design patent. Under Chinese IP laws, if there is a conflict of IP rights, the earlier obtained right shall be upheld and the later granted right shall be cancelled. A trademark right is obtained on the date of registration. Because of the ever increasing applications( in 2013 trademark applications exceeds 1.8 million), the registration of a trademark usually needs more than one year while a design patent, because of no substantial examination, usually gets granted in 4 months. In case one files a trademark application earlier than someone else files a design patent for the mark device, but the trademark registration is later than the grant of the design patent. In normal circumstance, the design patent shall be maintained and the registered mark may be revoked in case of rights conflict. Publication of the mark on the website earlier than the design patent application date, the publisher can prove his prior copyright of the mark device. The publication can be used to invalidate the granted design patent.
In China, it is not necessary to register one’s works in order to acquire copyright. However, without registration, the state of ownership of the work is unclear to the public as well as to court judges and the competent authorities. In a dispute, if one could not prove that he or she owns the rights of the work, and courts competent authorities shall not accept the case. Therefore, for litigation purpose, one needs to register his or her work with Chinese Copyright Office. However, the registration, can only serve as prime facial evidence proving that the relevant registrant is presumed to be the author of the relevant works, but the registration can not prove plagiarism, which is a necessary factor of proving copyright infringement. Proving plagiarism must prove that the accused copier may get access to the work. In case a work does not previously published, it is extremely difficult to prove possible access. Publication of one’s copyright works on the website can both identify the authorship of the works and serve as evidence to prove possible access.
In internet world, plagiarism is increasingly frequent, which damages the moral and economic rights of the true author. Publication of one’s work at the first time on the website can prove one’s true authorship of a work as well as proclaim one’s spiritual right.
Notarization of a trade secret creates a physical evidence, which can be used in a trade secret lawsuit.
In a trade secret usurpation case, the trade secret owner usually lacks of exhibit to prove its ownership of the disputed trade secret. Notarization of it before the dispute serves a good evidence.
The fees including the fees of notarization, service and postage.
And the fee of notarization also includs CD charge, and possible the surcharge for oversize document.
If you have questions, please mail to firstname.lastname@example.org.
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