The First Criminal Case on the Infringement of Network Publication Copyright Decided in Beijing
    The first-instance judgment for the illegitimate operation of external software for the development of the network game “Miracle 3G” by Tan Wenming, Liu Hongli and Shen Wenzhong has been issued in Beijing, which is the first criminal prosecution for copyright infringement related to the external software of network games. Tan was sentenced to two years and six months of fixed-term imprisonment and a fine of 50,000 yuan, Liu was sentenced to two years of fixed-term imprisonment with a three years’ suspension and a fine of 30,000 yuan, and Shen was sentenced to one year and six months of fixed-term imprisonment and a fine of 30,000 yuan.    

    The prosecutor alleged that these three persons hired two servers from a network service company and launched “External Software for 007 Intelligent Miracle 3G” and some other websites without authorization from June, 2004 to Sep. 2005, for the illegal purpose of making and selling external game cards to game players. The total illegitimate income involved reached 2.81 million. In China, the General Administration of Press and Publication (GAPP) has determined that it is illegitimate to develop external software without authorization, and has validated this determination by laws and regulations. The determination says that according to Article 3 of the Copyright Law of China, the software and flash image of the network game publication titled “Miracle 3G” are respectively, computer software and an artistic work, and are protected by the Copyright Law. The website titled “External Software for 007 Intelligent Miracle 3G”, without the authorization from the copyright owner, trespassed into the server system of “Miracle 3G” after breaking its technical protective measures, revised the data in it, usurped the flash image of “Miracle 3G”, and mass-produced and sold its external game cards. All these actions contravene the rules in Article 47 of the Copyright Law. (CCTV International)     

SIPO Plans to Collect Research Fruits on the Revision of the Implementing Regulations of the Patent Law

    The State Intellectual Property Office (SIPO), in order to cooperate in the third revision of the Patent Law, decided to study the revision of the Implementing Regulations of the Patent Law, and plans to collect the research fruits on the revision from all social circles.
 
    In order to obtain a satisfactory result, and to establish and perfect a working system for public participation and for the integrity of legislators, executives and experts, and to expand the channels for legislation, the SIPO, on the principle of “democratic and scientific legislation”, has drawn up The Guide to the Research Topics of the Implementing Regulations of the Patent Law（the Guide and The Project Management of the Research of the Implementing Regulations of the Patent Law (the Project Management). The Guide and the Project Management serve as the principles for enterprises, colleges and universities, scientific research institutions, intermediary organs, administrative organs, judicial authorities and experts to prepare project declarations for tender projects listed in the Guide based on the practical situations of their units. The members of the public, who are acquainted and have practical experience with the patent system, and are concerned with the revision of Implementing Regulation of the Patent Law, are invited, as individuals or in groups, to study all or any part of all the topics listed in the Guide, and submit the research findings to SIPO in the form of dissertation or research report. SIPO will reward those individuals or groups who have outstanding research findings. 

    Important Notice for Natural Persons in the Application of Trademark Registration
On Feb.6, the State Administration for Industry and Commerce (SAIC) promulgated the Important Notice for Natural Persons in the Application of Trademark Registration. As a result, natural persons will be restricted in the application of trademark registration by their status and by the scope of trademark registration applications, which shall not go beyond the range ratified in the business license. The Notice requires that applications for trademark registration must be standardized, and that the “snatching of trademarks” will no longer be a business. The Notice also stipulates that only those individual units of industry and commerce, individual partnerships, rural households engaged in contracting businesses, and other natural persons having legally obtained the approval for business operations may be listed in the application, and the applied scope is limited to the ratified business scope. 

General IP News

    “Global Forum on Intellectual Property Protection and Innovation” Held in Beijing
On March 27 and 28, the first “Global Forum on Intellectual Property Protection and Innovation” was held in Beijing. The Forum was jointly sponsored by the China Council for the Promotion of International Trade (CCPIT) and the American Chamber of Commerce (ACC), and its theme was “to encourage innovation, protect intellectual property and create wealth”. Nearly 500 government officials, entrepreneurs, experts and scholars from China, USA, EU, Japan, Korea, Singapore, India, Hong Kong and Taiwan attended the forum. 
    The Forum was jointly initiated by CCPIT and ACC, and organized by the International Chamber of Commerce (ICC), International Intellectual Property Protection Forum (IIPPF), European Commercial Union (UNICE), Korean International Trade Association (KITA) and Confederation of Indian Industry (CII). The Ministry of Science and Technology of PRC, Ministry of Commerce of PRC, State Office of Intellectual Property Protection and State Intellectual Property Office (SIPO) were the supporting units. 
    The Forum received recognition from China’s governmental authorities as well as from the governments of other countries. Wu Yi, vice premier of the State Council, mailed a letter to the sponsors to offer her congratulations. State Councilor Chen Zhili delivered a speech on the forum’s theme. Leading officials from the Ministry of Commerce, SIPO and State Administration for Industry and Commerce (SAIC) addressed the meeting on various topics. Other participants present at the meeting included officers from the World Intellectual Property Organization (WIPO), U.S. Dept of Commerce, Japan Patent Office, Intellectual Property Office of Singapore (IPOS), Korean Intellectual Property Office (KIPO), Hong Kong Intellectual Property Department (HKIPD) and other miscellaneous organizations, as well as representatives from such big enterprise as Siemens, Intel, Nokia, GE and Time Warner.       
    This specialized global multilateral meeting represented an initial commendable opportunity for industrial and commercial circles to promote independent innovation and IP protection. Based upon the above-mentioned theme, the Forum consisted of six plenary sessions and eight group sessions. The main topics dealt with the following issues: interaction between innovation and IP protection; the way to develop an innovative society; solutions for enterprises to enhance independent innovation; protection of intellectual property; enhancement of the public’s awareness of the importance of IP; coordination of law enforcement concerning IP; new issues on IP and law enforcement; and the role played by international organizations, chambers of commerce and associations.
    Although some group discussions did not go into depth due to the brief meeting time, they were all very practical, and some particular topics were referred to and discussed among the officers, experts and scholars from different countries, such as the protection of intellectual property concerning network piracy, coordination in IP law enforcement between central and local governments, and cooperation between universities and private economic sectors with regards to innovation. Jon Dudas (Vice minister from U.S. Dept of Commerce), Randall R. Rader (Judge from Court of Appeals for the Federal Circuit), Bruno Dalles (Director General from French Judicial Office of National Customs), Dana Hayter (from Intel), Lucy Nichols (from Nokia), George Nolen (from Siemens) and Sandra Aistars (from Time Warner) voiced their opinions. This two-day session did not arrive at a consensus among the participants concerning the issues raised. However, the establishment of such a forum mechanism got off to a good start. Improvements may be made in the future on the types of meetings needed to promote communication among the different governmental organizations and enterprises from participating countries. (Yang Cheng, China IP)

Basic Level Courts in Beijing Establish Three New IP Tribunals
    As of March 6, 2007, three basic level courts in Beijing, i.e. the Dongcheng District People’s Court, Xicheng District People’s Court and Fengtai District People’s Court, were authorized to accept some IPR civil cases. Hence, the number of IP tribunals of the basic level courts in Beijing has increased from two to five. Also for IPR trials in Beijing, a new system featuring “third-level courts and eight IP tribunals” was established. (Xinhua Net)

SIPO Issues Law Enforcement Data for IPOs Countrywide 
    From Jan. to Dec. 2006, local Intellectual Property Offices countrywide accepted 1,270 patent cases, and concluded trials for 973 cases. Among the cases, 1,227 were for patent infringement, and 952 were concluded; 43 involved other patent disputes, and 21 were concluded; 33 cases involved passed off patents of others, and 933 cases that passed off non-patented products as patented ones were dealt with; 20,475 law enforcement officials were involved and 7,780 business locations and 2,968,249 commodities were inspected; 12 cases were removed to the  public security organs. In addition, local IPOs had accepted 35 cases removed from other departments, and carried out 469 cooperative enforcement operations with other departments. (SIPO Net)

First IP Arbitration Center on Chinese Mainland Established in Xiamen
    The IP Arbitration Center of Xiamen’s Arbitration Commission was set up in Xiamen, which is the first IP Arbitration Center on the Chinese Mainland. The Center will stipulate special hearing proceedings as required and prepare a special arbitrator’s register and arbitration rules for the litigant’s option. The litigant may choose the dispute settlement body, a professional arbitrator he trusts, and arbitration proceedings suitable for the disputes, and even the place of the hearing. (Xinhua Net)  

Antimonopoly Law was listed in the Legislation Projects for Deliberation This Year
    The Antimonopoly Law has been listed in this year’s legislation projects for deliberation. According to the proposals by many National People’s Congress (NPC) deputies at the convention, it is an urgent task for China to constitute the Antimonopoly Law and promulgate it.
    The three typical monopoly phenomena in the current markets in China are represented by the abuse of an advantageous market position, limited competition among operators through “Cartel Arrangements”, and the administrative monopoly. The unfairness and grievances encountered by many twilight industries and consumers are usually related to these three monopoly phenomena.  
    These three monopoly phenomena are the main impediments for enterprises to improve their operating efficiency, and for consumers to protect their own interests, as well as for the development of the domestic enterprises. However, the existing laws and regulations in China do not function as an effective approach to deal with these phenomena. The Antimonopoly Law has become imperative for China to maintain its good economic development and its people’s livelihood. (Xinhua Net) 

Jon W. Dudas: China should lower the threshold of criminal penalties to pirates

   Jon W. Dudas, the Undersecretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO), held a small press conference on China’s IPR protection in Beijing on March 28.
Dudas mentioned that the number of patent and trademark applications is increasing steadily. The number of patent applications from China received by the USPTO is increasing by 75% annually and China has ranked No.1 in the world for the number of trademark applications. He also advised that the number of IP applications and the creativity of both China and the U.S. are on the rise and that there is effective cooperation between the two countries in the enforcement of IPR. The field for the enforcement has been broadened as well. But Dudas pointed out that there is an increasing trend with regard to the amount of counterfeit goods from China, as evidenced by the increase in the percentage of all counterfeit goods seized by the United States coming from China from 65% in 2005 to 81% in 2006, according to U.S. government figures.
    In response to journalists’ questions, Dudes mentioned that it would be more effective and uniform if one special department handled IPR infringing acts in China. The U.S. Federal Circuit Court on Intellectual Property has been quite successful. Pirates are always one step ahead of legislation and law enforcement, so China needs to improve its IPR protection by building an effective enforcement department and constitute laws which act as a deterrent and lower the threshold for criminal penalties given to IPR infringers. Dudas considered that most pirates and counterfeiters are punished by administrative penalties, not criminal penalties, which impacts the effectiveness of law enforcement. "The WTO is an avenue to resolve a dispute when you can't resolve it any other way," Dudas said. (Liu Ying, China IP)