外国投资者并购境内企业规定.ppt

1、Recent evolutions on IPR in China,Shi Jiayou (Associate Professor in Renmin University of China, PhD of Paris I and of Renmin University) China Symposium, Singapore, Jan. 30 2008,Chinese courts handle 52,437 IPR cases during five years,Chinese courts at all levels heard 54,321 and concluded 52,437 c

2、ases of civil lawsuits concerning IPR at first instance from 2002 to 2006.,Cont,In line with the principles of comprehensive IPR infringement compensation, courts at all levels have been gradually increasing the amount of compensation.,Foreign-related cases,During the years from 2002 to 2006, Chinas

3、 courts have settled 931 foreign-related IPR cases, with an average annual increase of 48.29%.,Cont,Cont,Provisions for Foreign Investors to Merge and Acquire Domestic Enterprises (M (2) time for continuous use of the mark; (3) consecutive time, extent and geographical area of advertisement of the m

4、ark; (4) records of protection of the mark as a well-known mark; (5) any other factors relevant to the reputation of the mark. ,Judicial interpretations,Since 2001, the Supreme Court has reviewed and amended 18 judicial interpretations, which involve patents, trademarks, copyrights, new plant variet

5、ies, integrated circuit design, technical contracts, unfair competition, computer network domain names, intellectual property crime, pre-trial provisional measures, IPR property preservation measures, case jurisdiction and trial division.,Interpretation on Some Issues Concerning the Application of L

6、aw in the Trial of Civil Cases Involving Unfair Competition (2007),最高人民法院关于审理不正当竞争民事案件应用法律若干问题的解释 The interpretation on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition has been promulgated by the Supreme Peoples Court on January 12, 2007 and com

7、e into force as of February 1, 2007.,“well-known commodities”,Commodities shall not be affirmed as “well-known”, provided that they are only famous outside the territory but not within the territory of China.,enterprise name or personal name,The name of enterprise or personal name which shall be pro

8、tected according to law has been extended to the business name of an enterprise or the pen name or stage name of any natural person.,Trade secrets,Interpretation provides that the name list of customers among trade secrets shall generally refer to the name, address, contact information, trading habi

9、ts, trading intent, and trading contents of customers that consist of the specific client information different from relevant public information.,Trade Secret,Unavailability to the Public -Commercial Value and Practical Applicability -Confidentiality Measures,Reverse engineering,In accordance with I

10、nterpretation, it is legitimate for managers to obtain business secrets by way of reverse engineering. Nevertheless, it stresses that reverse engineering will not be a good defense for a trade secret infringement claim where the trade secret has been obtained in an irregular way before.,Civil liabil

11、ities,Remedies for Infringement of Trade Secret The remedies for infringement of trade secret under the Interpretation include injunctive relief and damages. Injunctive Relief,Damages,(i) lost profits incurred by the trade secret owner due to such infringement; or (ii) unjust benefit obtained by the

12、 defendant during such infringement; or (iii) reasonable royalty where neither lost profits nor unjust benefit or some combination of the two remedies are applicable; or (iv) commercial value of such trade secret where the trade secret has been known to the public due to such infringement.,Jurisdict

13、ion,According to the Interpretation, in general the intermediate courts have jurisdiction over any unfair competition claims.,Labor Contract Law of 2007,This law contains provisions to regulate both employers and employees on trade secrets and intellectual property confidentiality related issues.,La

14、bor Contract Law,Article 23 Employers and employees may include terms in their labor contract relating to the confidentiality of business secrets and intellectual property. In labor contracts which contain confidentiality obligations, employer and employee may agree on the competition restriction. A

15、fter cancellation or termination of the labor contract and during the period of restricted competition, compensation shall be paid on a monthly basis. Employees who breach the clauses restricting competition shall pay liquidated damages to the employer in accordance with the agreement thereof.,Cont,

16、Article 24 Personnel subject to restrictions in competition shall be limited to senior management, senior technicians and other individuals with obligations of confidentiality. The scope, area and term of the restriction shall be agreed upon between the employer and the employee and shall not be in

17、violation of laws, rules and regulations. The term, in which the employees who are subject to restrictions on competition in working for a competing business which produces the same products or services, or starts a business for the same products or services, shall not exceed two years.,Cont,Article

18、 90 If a worker terminates his employment contract in violation of this law or breaches obligations of confidentiality or restrictions on competition stipulated in his/her employment contract, and if such violation or breach causes losses to his employer, he will be held liable for damages.,CHINT v.

19、 Schneider (2007),The judgment of the Chinese IP infringement case in the first instance with highest damage claim was rendered in Wenzhou, Zhejiang province on September, 29 2007. Schneider Electric S.A, the world leader in the lower voltage electric products business, was ordered by Wenzhou Interm

20、ediate Peoples Court to cease patent infringement and pay 3. 33 billion RMB as damages to a Chinese private-owned enterprise CHINT Group .,Cont,Schneider insisted that the patent claimed by CHINT should be invalid and also filed an invalidation request against CHINTs patent with the Patent Reexamination Board of SIPO during the