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Intellectual property protection and the right to relief

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Our intellectual property protection regime showed significant administrative and judicial protection (including protection of civil justice, criminal justice and administrative judicial protection of intellectual property protection) dual-track characteristics. IP rights holders can either request the relevant intellectual property administrative authorities take appropriate administrative measures may also bring a suit directly to the court to protect their intellectual property.

The first part of the intellectual property protection
Specific measures include administrative protection of intellectual property:
1. investigation investigate violations;
2. Administrative penalties for IPR infringements (including the order to stop the infringement, fines, confiscation and destruction of infringing goods and specialized materials used to manufacture infringing goods, tools, equipment, etc.);
3, for the amount of compensation for an infringement of the parties to mediate.
Specific measures include judicial protection of intellectual property:
1, take interim measures before the appeal (including appeal before the order to stop the relevant act, property preservation before litigation and pretrial evidence preservation);
2, the court according to the specific circumstances of the case, can be held in civil, administrative and criminal violations related to humans, in particular:
(1) civil liability including ordered to stop the infringement, eliminating the effects of apology, damages and other forms of liability;
(2) Administrative responsibility includes ordered to stop infringement, fines, confiscation and destruction of infringing goods and specialized materials used to manufacture infringing goods, tools, and equipment;
(3) criminal responsibility include fines, detention, less than seven years and so on.
The second part of the program of intellectual property protection

First, intellectual property civil protection program
Intellectual property protection of fundamental civil procedure is as follows:
1, filed a lawsuit by the plaintiff, the court to review the law and decide whether the case and case acceptance within five days after service of the complaint the defendant;
2, since the defendant within 15 days after receipt of the complaint (if the defendant for a foreign party is 30 days) to submit written pleadings to the court;
3, the parties shall submit evidence of the court appointed by the court within a period to complete the burden of proof;
4, court organization held by the parties prior to the exchange of evidence;
5, the trial investigation first by the parties make statements, evidence, cross-examination, and then to the court debate;
6, after the court investigation, court mediation organize parties, such as mediation is successful, the plaintiffs choose to withdraw the prosecution or by the court issued a civil mediation;
7. If the parties can not reach mediation, adjudication according to law Collegiate Panel. Case is complicated or high-impact cases, according to the law after the ruling by the Judicial Committee of the discussion.

Second, the IP administrative Savers
According to the intellectual property rights of the person requesting the Administrative Authorities by law to take the following actions:
1, to investigate cases related to the fact that parties to the case to determine;
2, a series of measures to collect evidence: review and copy documents, and the alleged infringement of financial books and written materials associated; inspection, seizure, detention and related goods infringing activities; asks parties to the case and the witnesses; the use of detection, audio and video and other on-site evidence; collect evidence related to the alleged infringement of the sample. Executive Collect the evidence process, we must make the appropriate record, by the relevant personnel to confirm the signature drape;
3. Administrative Authorities concluded that an infringement after investigation, may make appropriate administrative sanctions according to law.

Third, the IPR criminal protection program
Criminal protection of intellectual property rights, including intellectual property rights of their own people and to institute criminal proceedings by the Public Prosecution Service to the People's Court to prosecute two ways.
(A) criminal private prosecution procedure: intellectual property rights are not required to by public security organs and procuratorial organs, to bring criminal proceedings directly to the court. But if the case involves "serious crimes against the public order or harm the national interest", the parties shall themselves to the court in criminal proceedings.
(B) the criminal indictment: 1, a report by the intellectual property rights of people to the police; 2, after the detective agency may accept cases on file for investigation according to law; 3, after the conclusion of the investigation the public security organs, procuratorial organs of the people shall be transferred to the prosecution; 4, prosecution after examination that meet the conditions for prosecution, according to the People's Court has jurisdiction to prosecute criminal division; 5, the victim of a crime because the defendant has suffered material losses, in criminal proceedings, the right to file an incidental civil proceedings. Because of the defendant's criminal conduct resulting in the state and collective property losses, the prosecution in accordance with the law to prosecute the time, that may be made incidental civil action.
The third part of the type of intellectual property cases
Intellectual property rights of intellectual property cases into civil disputes, intellectual property disputes and criminal IPR administrative disputes.

First, intellectual property civil cases, including:
1, ownership of intellectual property disputes;
2, intellectual property infringement disputes;
3, unfair competition disputes.

Second, the IP administrative cases, including:
1, intellectual property rights disputes arising indeed authorized administrative proceedings;
2, treatment of intellectual property infringement disputes caused by administrative proceedings.

Third, the IPR criminal cases, including:
1 Criminal Law 213-220 prescribed seven of Intellectual Property Crime (maximum penalty of seven years imprisonment);
2, Criminal Law 140-150 illegal business, production, marketing and shoddy goods crime (including the highest death penalty produces or sells fake, production, selling poisonous and harmful food crime) regulations;
3, illegal business (maximum sentence of fifteen years in prison).

The fourth part of the jurisdiction of IPR cases
For a long time, China's IPR civil disputes, intellectual property disputes and criminal IPR administrative disputes, intellectual property rights, respectively from the corresponding People's Court courtroom, administrative tribunals and criminal courts in accordance with the Civil Procedure Law, Administrative Procedure Law, Criminal Procedure Law and relevant judicial interpretation of the provisions of the program for trial.

First, territorial jurisdiction
Territorial jurisdiction in intellectual property cases generally depends on: 1. the defendant resides; 2, the infringement took place or infringement results occurred.

Second, the level of jurisdiction
Level jurisdiction (a) IP civil cases
In China, according to "Civil Law" Article XIX (c) and the Supreme People's Court judicial interpretation of the relevant provisions, the level of intellectual property under the jurisdiction of civil cases, based on the principle of intermediate courts to the jurisdiction of the Court of grassroots Level supplementary Jurisdiction. That jurisdiction in intellectual property cases should generally be around the Intermediate People's Court jurisdiction. But for patent disputes, the jurisdiction of cases of new plant varieties, layout designs of integrated circuits as well as cases involving well-known trademarks of civil cases more stringent requirements, only (by the provinces, autonomous regions and municipalities directly under the seat of government by the particular Intermediate People's Court The Intermediate People's Court or the Supreme Court designated the Intermediate People's Court) jurisdiction, other Intermediate People's Court civil jurisdiction of such disputes, must be reported to the approval by the Supreme People's Court, the Intermediate People's Court will not be accepted without the approval of such cases, and grassroots courts have no right to trial. At present, China all provinces, autonomous regions and municipalities Higher People's Court and a number of intermediate people's courts have set up a special court room (often referred to as "the Third Civil Chamber" or "Intellectual Property Division") within the jurisdiction hearing civil cases of intellectual property rights .

The level of jurisdiction (b) Intellectual Property Administrative Cases
First, patents, trademarks, layout designs of integrated circuits and new plant varieties four kinds Authorization and Ownership Determination IPR administrative cases of first instance, according to the "Supreme People's Court on patent, trademark and other intellectual property Authorization and Ownership Determination administrative case to the division of labor "(The law [2009] No. 39) shall be unified by the Beijing First, the Second Intermediate People's Court of intellectual property division of intellectual property rights tribunals hearing second instance cases by the Intellectual Property Division of Beijing Higher People's Court for trial.

Other patent administrative dispute cases (ie refuses to accept a specific administrative act local patent administration department under the intellectual property rights instituted administrative proceedings), according to "Some Provisions of the Supreme Court to hear patent disputes Application of Law" (Law Interpretation [2001] the 21st) Article II provides that a patent dispute administrative cases of first instance, specified by the provinces, autonomous regions and municipalities location Intermediate People's Court and Supreme People's Intermediate People's Court administrative tribunal jurisdiction.

Cases related to other refuses to accept a specific administrative act made by the administrative department of intellectual property, in accordance with the relevant provisions of the Administrative Procedure Law to determine jurisdiction.

Level jurisdiction (c) intellectual property rights in criminal cases
Jurisdiction in criminal cases of intellectual property rights is not specifically defined, the relevant provisions of "Criminal Procedure" OK jurisdiction.
For related intellectual property cases "competent court" shall be determined in accordance with the provisions of the above-mentioned level and the district jurisdiction, that while qualifying level and the district jurisdiction, and filed a lawsuit to the competent court by the intellectual property right holders .

The fifth part the statute of limitations in intellectual property cases
Intellectual property disputes in general statute of limitations of two years from the rights of people they know or should have obtained knowledge of their legal rights have been infringed calculations. Since intellectual property rights infringement is often carried out continuously, and some longer duration. Some people from the right to know or should have known right from the date the infringement has not been investigated for two years, when the right people mention tort, intellectual property rights holders are still law protection period, the infringer is still in the implementation of the infringement . Supreme People's Court judicial interpretation of the relevant statute of limitations in such cases has made special provisions in the period for which the intellectual property is protected by law, the court shall sentence the infringer to stop infringement, damages for infringement of the rights of man shall a people's court prosecution projected forward from the date of 2-year period, more than two years of infringement damages not protected.

Part VI of the trial period in intellectual property cases
IP civil cases: 1, civil cases of first instance trial period of six months from the approval of president of the court, may be extended for six months; the need to extend by the Higher People's Court approved extension of three months; 2, the civil first instance verdict appeal in case of appeal, the second trial period of three months, there are special circumstances, the president of the court may extend the approval of three months.

IP administrative cases: 1. administrative cases of first instance trial period of three months, there are special circumstances require an extension by the Higher People's Court approved extension of three months;
2, the administrative cases of second instance trial period of 2 months, there are special circumstances require an extension by the Higher People's Court approval to extend two months.
IPR criminal cases: 1. indictable criminal cases of first instance trial period one month to one and a half months. In line with the provisions of Article 126 of the Criminal Procedure Law, upon the approval of the Higher People's Court, it may be extended by one month; 2, criminal appeals or protest case one month trial period to one and a half months. In line with the provisions of Article 126 of the Criminal Procedure Law, upon the approval of the Higher People's Court, it may be extended by one month.
Foreign-related IPR cases NA jurisdiction limits specified above.

Part VII Proof of IPR infringement cases Conditions

First, the burden of proof allocation
Infringement Lawsuit general principles of the allocation of responsibilities is "who advocate who burden of proof." Thus, in the case of intellectual property infringement, the plaintiff shall alleged infringement of its intellectual property rights infringement the burden of proof. However, consistent with the special law, applicable burden of proof upside down. According to China's relevant judicial interpretation of the provisions, in cases of infringement of intellectual property rights, the burden of proof applies mainly include the following situations:
1, copyright disputes, the replica of publishers, producers should their publication, production has the burden of proof legally authorized reproductions of the issuer, or films, or a method analogous to cinematography creative works, computer software, audio and video products of copies of their lease shall issue, rental of copies have the burden of proof lawful origin;
2, due to new product patented manufacturing method patent infringement litigation arising, the burden of proof from manufacturing the same product is different from the patented process units and individuals to its manufacturing method;

Second, evidence collection
(A) Collection of evidence on their own
Under normal circumstances, the plaintiff should collect their own evidence relevant to the case in order to prove the facts alleged. Judicial practice, the most common way to collect evidence of the process by a notary public and available to purchase infringing products infringing products be notarized.
(B) the preservation of evidence
According to the law also provides that, in the case of evidence may be lost or difficult to obtain, the participants in the proceedings to the people's court for preservation of evidence, the court can also take the initiative to take protective measures.
(Iii) the people's court to investigate and collect evidence
In addition, the parties themselves for objective reasons can not collect evidence, may apply to court for investigation and collection. Parties to apply to court for investigation and collection of evidence shall comply with the following conditions: 1, belonging to state departments to save and archive the People's Court shall ex officio and obtained; 2, involving state secrets, commercial secrets or individual privacy material; 3, the parties their legal representatives is indeed due to objective reasons can not own other material collected.

People's Court under the following circumstances can also take the initiative to investigate and collect evidence for trial of the case: 1, may be detrimental to the national interests involved, the fact that the public interest or the lawful rights and interests; 2, involving additional ex officio parties, stay the proceedings end litigation , avoid disputes and other procedural matters unrelated entity.

Third, the evidentiary requirements
(A) the parties to submit evidence to the court, it shall submit the original (physical) and classified evidence and complete the evidence compiled the list, submit the original (thing) is really difficult, you can check the same as provided by the people's court, or by Confirm a copy of the other party (goods);
(B) evidence provided by the parties to the court is outside the field of formation, it shall be subject to the host country notary notarized by the Chinese Embassy and consulates in the country to be certified or performance of the treaty concluded with that country certification procedures specified;
Outside the documentary evidence (3) The parties submitted, it must be accompanied by a Chinese translation;
(Iv) the people's court specified period of not less than 30 days of evidence. The parties shall submit evidence within the evidence submission period, the parties within a period not submitted evidence, deemed to have waived the right to evidence, the evidence submitted by the parties late, when the People's Court to refrain from organizing cross-examination;
(5) The party requesting for the witness to testify in court, should the expiry of the deadline on the 10th of evidence presented and approved by the people;
(Vi) The parties apply to court for the court to investigate and collect (or recall) evidence, not later than 7 days prior to the expiration of the period of proof;
(Vii) The parties to the people's court for preservation of evidence, not later than 7 days prior to the expiration of the period of proof, according to the people's court request to provide corresponding guarantee;
(Viii) The parties shall not infringe upon the legitimate rights and interests of others or in violation of the law prohibition of methods to obtain evidence.

Fourth, the burden of proof content
Whether it is the choice of means to pursue the legal responsibility of the infringer, the right holder needs to have a competent court to provide proof of intellectual property rights including valid evidence (right credentials), and show evidence of the infringement of intellectual property rights (Infringement evidence).
(A) The right credentials
Right credentials submitted by the parties must prove: 1, is everyone involved or interested party intellectual property; 2, involving a real and effective intellectual property rights and is protected by our courts. For example, the prosecution of the patent owner shall submit proof of its real and effective patent documents, including patent, claims, specification, drawings and latest patent annual fee paid vouchers, filed a utility model patent infringement lawsuit plaintiffs, should Presented by the Patent Office issued search reports; trademark holders prosecution, trademark registration and renewal certificates shall be submitted registration (if it is an international trademark registration, you need to publish by the State Trademark Bureau of the international registration valid proof in China ), owner of the trademark changes relevant documents and other evidence to prove ownership of trademarks; copyright infringement cases, copyright shall submit proof papers, original, legal publications, copyright registration certificate, issued by the certification bodies, co-creation agreements as their rights credentials.
(B) evidence of infringement
Provide evidence of infringement of the parties to be able to prove that the accused carried out or is being accused of violations. For example, the defendant's promotional materials, product samples defendant, the defendant's product sales contracts, sales invoices, and so on. In addition, relevant information collected on the Internet can also be used as evidence, but the best application related to the preservation of a notary public notary. Related witness testimony to be used as evidence, but the witness must testify in court and the parties asked that question in order to guarantee its authenticity.

Part VIII determine liability for IP infringement cases

One, identified on the basis of tort damages
IPR infringement cases, the primary basis for determining the liability of the infringer's are: (1) the actual loss of intellectual property rights holders as a basis for determining the amount of compensation losses; (2) the infringer from the infringement as illegal profits the basis for determining the amount of damages; interest (3) rights holders and actual losses obtained by the infringer from the infringement is difficult to determine, with reference to rights licensing fees are reasonable in amount as the basis for determining the amount of damages; (4) the rights of people loss of benefits gained by the infringer and related rights, licensing fees are difficult to determine, the people's court according to the type of intellectual property, the nature and circumstances of the infringement and other factors to determine the amount of damages within the scope of the statutory limit.

People's Court at the request of rights holders as well as the specific case, the right person who can investigate, put an end to the infringement of the reasonable expenses paid in the amount of compensation is calculated range.

Determining the liability of the infringer, it can calculate the amount of compensation based on the calculation method according to one choice.

Second, infringement damages the amount of compensation specific calculation method
(A) patent infringement case
The amount of compensation for patent infringement because the actual loss suffered by the infringed right shall be determined; difficult to determine the actual loss may be determined in accordance with the interests of the infringer from the infringement gained. Loss or benefit obtained by the infringer is difficult to determine the rights of people, referring to the patent licensing fees appropriate multiple. The amount of compensation shall include the reasonable expenses for stopping the act of infringement. Loss of human rights, benefits gained by the infringer and patent licensing fees are difficult to determine, the people's court of the type of patent, nature and circumstances of the infringement and other factors, determine to give one million yuan 1,000,000 yuan compensation.

The total number of right person for the losses suffered by the infringement may be due to sales decrease caused by infringement of proprietary products based on the patent holder a reasonable profit calculated by multiplying the product obtained from each of the patented product. The right to reduce the total number of sales people is difficult to determine the total number of infringing products on the market multiplied by a reasonable profit obtained from each product can be regarded as a patented product right person for the losses suffered by the infringement.

The interests of the infringer from the infringement can get a reasonable profit calculated by multiplying the product obtained from each of the total number of infringing products infringing products on the market in accordance with. The interests of the infringer from the infringement obtained generally in accordance with the infringer's business profits, for infringement of the industry entirely infringer can be calculated according to the sales.

The interests of the infringer's loss or the infringer is difficult to determine, patent licensing fees can refer to the people's court according to the nature and amount of patent categories circumstances, patent licensing fees, the infringer infringing the patent license the nature, scope, time and other factors, refer to the patent licensing fees of 1-3 times the amount of compensation is determined reasonable; there is no patent licensing fees or patent may refer obviously unreasonable license fee, the court can patent category infringer nature and circumstances of the infringement and other factors, generally more than one million yuan ten thousand yuan or less determine the amount of compensation.

People's Court at the request of rights holders as well as the specific case, the right person who can investigate, put an end to the infringement of the reasonable expenses paid in the amount of compensation is calculated range.

(B) cases of trademark infringement
The amount of compensation trademark infringement, the interests of the infringement during the period of infringement of the infringer has obtained or has been infringed during the infringement has been infringed because the losses suffered, including the infringer to stop the infringement reasonable expenses paid. Infringer from the infringement interest income, or by the infringer from the infringement is difficult to determine the losses suffered by the people's court compensation of 500,000 yuan in light of circumstances infringement judgment.

Infringement benefits obtained, can be calculated with the goods infringing goods sales unit profit product; this product unit profit could not be identified, according to the trademark goods unit profit calculations.

Due to the losses suffered by the infringement, it may claim that the infringer has caused people to reduce the amount of goods sold or sales of the infringing goods and the trademark goods calculated by multiplying the unit profit.

The interests of the infringer from the infringement or obtained by the infringer from the infringement losses suffered are difficult to determine, the court may ex officio or compensation of 500,000 yuan in light of circumstances infringement judgment request of the parties. People's Court in determining the amount of compensation should be considered the nature of the infringement, the amount of time factors, consequences, reputation of the trademark, trademark licensing fees, the type of trademark licenses, time, scope and reasonable expenses, such as integrated determined to stop the infringement .

Stopping the infringement is reasonable expenses paid reasonable expenses violations, including the right person or agent of the infringement investigation and evidence collection. Attorneys' fees in accordance with the people's court claims and circumstances of the case the parties may be calculated in line with the relevant departments under the State within the scope of compensation.

(C) Copyright infringement
Infringement of copyright or rights related to copyright, the infringer shall compensate for actual losses; the actual losses are difficult to calculate, it can be compensated in accordance with the infringer's illegal gains. The amount of compensation shall include the reasonable expenses for stopping the act of infringement. Accordance with the actual loss or the infringer's illegal gains can not be determined by the people's court according to the circumstances tort, adjudicate a compensation of 500,000 yuan.

Actual losses can be calculated according to any person who caused the infringement reproductions issued or reduce the amount of sales of the infringing copies of the copies and the rights of the Issuer unit profit product. Reduce the amount of the issue is difficult to determine, determined in accordance with market sales of infringing copies.

Accordance with the actual loss or the infringer's illegal gains can not be determined, the court ex officio or at the request of the parties to determine the amount of compensation based on the infringement of the plot in 500,000 yuan. People's Court in determining the amount of compensation should be considered type of work, a reasonable royalty, tort nature, consequences and other circumstances determined comprehensively.

Stop human rights violations reasonable expenses paid, including the right person or agent to investigate violations, evidence of a reasonable fee. Attorneys' fees in accordance with the people's court proceedings request of the parties and the specific case can be calculated in line with the relevant departments under the State within the scope of compensation.

Part IX of intellectual property cases in the preliminary injunction

Intellectual property cases in the preliminary injunction is defined as the time to stop the violation of the rights are being implemented or to be implemented 'intellectual property rights or infringement may act, the parties prior to application claims the people's court for the prosecution of the alleged infringer is not necessarily act a mandatory order. People's Court after review identified compliance shall be made within 48 hours of the temporary injunction ruling by law. Party refused to accept the ruling, may apply for reconsideration once, not be suspended during the reconsideration determination. Within fifteen days of the measures taken by the applicant from the People's Court to stop the relevant act not to prosecute, the people's court shall cancel the measure. The respondent for the applicant not to prosecute or to apply error losses, the applicant may request compensation.

First, apply for preliminary injunction conditions
(A) The right has evidence to prove that another person is committing or about violations of its intellectual property rights;
(B) If not curbed it will cause damage to the legitimate interests of the right holder irreparable.

Second, the application for preliminary injunction procedural requirements
(A) subject eligibility, which must be the intellectual property right holders or interested parties (including intellectual property is the legal successor of the licensee and rights and other intellectual property assets, including intellectual property-exclusive license agreement is licensed to the people who may be alone court applications; exclusive licensing contract is permitted in the case of intellectual property rights do not apply, you can apply);
(B) to have jurisdiction over the people's court.

Third, prior to the application materials should be submitted to appeal ban
(A) written request shall state the party and the basic case, the application of the specific content, scope and rationale (including the relevant act if not promptly stop the legitimate interests of the applicant will suffer irreparable harm specify) other matters;

(B) evidence related intellectual property rights of the applicants (applicant shall submit to prove their right to a real and effective documentation, including certificates and other credentials rights, such as patent, patent claims, the patent specification, patent fees paid vouchers, trademark registration certificate, work papers, original works, legal publications, copyright registration certificates, etc. related to utility model patents, the applicant shall also submit the Patent Office issued a search report. interested party making the application, should also provide exclusive license contract, an exclusive license contracts and related materials. exclusive license contract for the licensee separate application shall be submitted to the rights of people to give up the application documents. patent, trademark, here's copyright property rights filed, should have inherited or are inherited submit evidence of material);

(C) provide the applicant is or is going to evidence of violations, including the alleged infringing products (mainly prove "potentially abusive" or "in favor of the possibility of");

(Iv) to provide proof of the applicant's legitimate rights and interests will suffer "irreparable harm" evidence (such as: personal rights or goodwill may be impaired; may affect their market share; respondent behavior is likely to further expand the scope or consequences ; the applicant does not have sufficient solvency, etc.);
(V) to provide effective guarantees (applicant shall provide the guarantee, the applicant fails to provide security, the court will reject the application in execution is stopped ruling concerning violations of the process, applicants may be caused due to the measure more great loss, the court may order the applicant additional appropriate guarantees. Applicants are not additional security, you can lift the measure. These measures taken by the people's court, not because the applicant is to provide security and disarmament, but the consent of the applicant except. fails to provide security, to reject the application).
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