Tonight I was in Washington, DC to be interviewed by CNBC World. I am still getting over jet lag from my return from Beijing, but I think I was fully awake throughout the interview. Please email me and let me know what you think!
My WacoPatentBlog co-author, Daniel G. Henry, recently sat down with Judge Albright for a Q&A. Here is some of that conversation:
My response to the unsupported claim that the Chinese government is slowing down IP cases due to the trade war
My friend, Mark Cohen, recently posted an article entitled "Where have all the cases gone… long time passing…" While I greatly respect Mark and value his insight into China, this particular post is disappointing. Mark, especially since he moved to academia, has pushed for thorough transparency, which is a good thing. Specifically, he emphasizes that patent litigation statistics should be taken with a grain of salt. Again, this is good advice, because there is no PACER, Lex Machina, much less a Lexis-Nexis or Westlaw to search or analyze cases. Patent cases from the Beijing IP Court can be obtained via IP House, which Mark used in one of his analyses here.
But in this post, Mark makes an alarming accusation based only on the statement "ha[d] heard from various [unnamed] sources." That accusation is that the Chinese government (or its courts, sua sponte ) are slowing down and not accepting patent and trademark cases for political reasons. I will not opine on trademark cases as I do not file enough of these personally to support or challenge this allegation. But as for patent cases, including those filed by US NPEs, this is not my experience. Stating that "cases can be decided but only upon approval from the Supreme People’s Court" is obviously alarming, but without proof, this seems to be just more US politicizing of the trade war.
Mark Cohen is a smart guy who normally demands not just evidence, but thorough evidence. Mark and I have reasonably disagreed in the past on the amount of data needed to show just how well China's patent litigation system has evolved over the last five years or so. We did not and still do not see eye to eye, but I always appreciated his dedication to sufficient public data.
Here, I just want to point out that this is an opinion based solely on hearsay statements of unidentified sources. Further, as someone in the middle of many patent cases between foreign (including US) entities, I have not seen any political maneuvering. I have not experienced any slowdown or effect in the courts in which we file. Beijing has come to a standstill, but that is because of the number of backed up cases, not political action by the Chinese government or courts. In fact, we have had great successes and moved even SEP cases more quickly than I had thought we would.
Like Mark, I invite anyone who is willing to go on the record to provide such experiences to share their information. Until then, I worry that the United States is listening to people like Marco Rubio more than their own common sense and actual experiences. I will not apologize for doubting folks like Senator Rubio and other US bureaucrats and politicians who get paid to demonize China.
Please email me any examples of the Chinese courts or government unfairly slowing or rejecting patent (or trademark) cases.
My new blog is now online! David G. Henry and I have created the Waco Patent Blog to provide news and information regarding patent litigation the exciting Western District of Texas, Waco Division! Join us as we explore this exciting patent venue! Don't worry, though: I will still be managing this China Patent Blog as I split my time between China and Texas!
#dbllawyers #albright #wdtx #patentlitigation #waco #wacopatents #patents
My firm, Dunlap Bennett & Ludwig won a significant victory in a high-profile patent lawsuit.
A Texas U.S. District Judge doubled a jury award to $24.5 million and added $4.75 million in attorneys’ fees and expenses for a toy company that won a case against Telebrands Corporation. In doing so, the judge found that Telebrands infringed two patents on a water balloon device. The judge also found that Telebrands’ intentionally copied the patented product and used obstructionist tactics throughout the case. The product “Bunch O Balloons” is produced by toy manufacturer ZURU pursuant to a license with Tinnus. Telebrands copied the product and released an “As Seen on TV” infomercial-style ad campaign calling its product “Balloon Bonanza."
In 2015, Tinnus and ZURU sued Telebrands, claiming that Telebrands’ product infringed their patent. Judge Robert W. Schroeder III issued a 64-page opinion in which he added to the plaintiffs’ trial victory by doubling the jury award to $24.5 million. He also awarded plaintiffs $4.75 million in attorney fees and expenses and denied Telebrands’ motions for a new trial.
The opinion is available here.
For more information, see the DBL website summary or the IP Law360 story.
UPDATE: For those having problems accessing the podcast, it is available directly from this blog at this link.
My firm recently launched a new podcast, Blackletter Podcast. On the most recent podcast, Tom Dunlap interviewed my partner, Dragon Wang, and me regarding protecting and defending intellectual property in China.
Here is a link to the podcast on iTunes: Tom Dunlap speaks with Erick Robinson and Dragon Wang, attorneys for Dunlap Bennett & Ludwig, about how to protect and defend intellectual property in China.
On 4 January 2019, the National People’s Congress published a draft amendment to the Patent Law (the “Amendment”). See the Chinese version here. The Amendment is open for public comments through February 3, 2019 via the NPC website.
China Law & Practice (ALM) published my article analyzing the provisions of the Amendment here. Unfortunately, it is behind a paywall. However, here is a redline of the changes in English.
Email me if you have any questions or if I or my firm, Dunlap, Bennett & Ludwig can assist you regarding Chinese IP!
I wanted to expand here on the article I recently published at CGTN. In that article, I pointed out that as of January 1, 2019, the Supreme People’s Court (“SPC”) enacted a national appellate court for civil and administrative IP cases. However, it is important to note that the new Intellectual Property Rights Court for Appeals (“IPRCA”) is not just an appellate court, as it can also serve as a trial court.
In addition to hearing appeals in cases concerning invention patents, utility model patents, design patents, new plant varieties, layout design of integrated circuits, know-how, computer programs, and antitrust, the new IPRCA can also hear “major” and “complicated” first instance civil and administrative cases, as well as other cases that the SPC considers should be tried before the IPRCA. Exactly what the SPC considers “major” and “complicated” is not clear. Further, there is a catch-all category including “[o]ther cases that the SPC considers should be tried before the IP Court.”
Until the new court has some cases under its belt and/or the SPC provides additional interpretations, on Dec. 28, 2018, the SPC issued the Provisions on Issues Concerning IP Tribunal (the “Provisions”) providing details regarding the IPRCA. See here for the Chinese version of the Provisions or here for a (quite imperfect) Google-translated English version. UPDATE: here is bilingual version.
Article 2 of the Provisions states that the IPRCA shall have jurisdiction over the following:
Other than jurisdictional issues, the Provisions also provide some additional details. For example, Article 4 provides for electronic service and disclosure (hallelujah!). Article 5 allows for electronic and online evidence exchanges, pre-trial meetings, and other court functions to maximize efficiency (again, wonderful!). Article 6 states that the IP Court may, if needed, travel to the location of the original trial or case. Article 8 states that case filing information may be inquired through the electronic litigation platform and the China Trial Process Information Open Network. Although this seems to anticipate a structure not in existence yet, it is certainly cause for excitement because one of the most limiting features of Chinese litigation is the lack of a full electronic case management system.
I will continue to provide updates as we learn more about the new IP Court. For now, I am a huge fan and see this as a real game-changer. I look forward to finding out for what cases the new court will act as a trial court, and what resources will be available to ensure that the new organizational structure does not create a paralyzing bottleneck in an already-overloaded system.
See my latest article on China’s new IP Appellate Court published by the China Global Television Network, the English-language news channel of the State-owned China Global Television Network group:
This will be a short post, as I just wanted to point out that the Supreme People’s Court very recently granted InterDigital’s petition for a retrial in a case involving royalties to be paid by Huawei. The high court’s ruling overturns a decision by the Guangdong Province High Court decision that certain InterDigital Chinese patents should not exceed 0.019 percent of the actual sales price of each Huawei product.
I will try to get the raw data shortly, but the English-language report saying this is here: https://news.bloomberglaw.com/ip-law/interdigital-granted-huawei-patent-case-retrial-by-china-spc
This is a big deal, as it will make it nearly impossible for Chinese and other companies to cite IDC v. Huawei for the purpose of supporting a 0.02% royalty rate. Indeed, Chinese damages law is quickly evolving to catch up with the rest of the progressive patent law and procedure we continue to see coming out of China. This is great news for innovation, for China, and for the innovators worldwide.
Bilingual (English-Chinese) Version of Apple Injunction Order in Both Qualcomm Cases from Fuzhou Intermediate People's Court
Because not everyone can read Chinese, here are downloadable PDF copies of the bilingual versions of both orders from the Fuzhou court regarding the injunction against Apple requested by Qualcomm:
Note that in China, each patent requires a different "case." Here, because there are two patents, there are two separate orders: one for Patent No. ZL201310491586.1 and one for ZL200480042119.X. I encourage you to read both orders, although they are largely the same.
Interesting facts from these documents:
I have officially joined the U.S. law firm of Dunlap, Bennett & Ludwig (DBL) as a Partner. DBL is a leading full-practice law firm with offices in 17 cities in the United States, China, Europe, Canada, and Puerto Rico. I will also be working with IntellStrategy, a Chinese patent agency. IntellStrategy is closely affiliated with, but separate from, DBL. The DBL-IntellStrategy alliance allows our team in North America, Europe, and China to achieve goals for our clients that other law firms, patent agencies, and consultancies cannot. For example, unlike many international firms which "cannot assist clients with Chinese IP law," IntellStrategy can directly represent Chinese and international clients in China's courts and before the Chinese patent office and Patent Reexamination Board.
I will continue to split my time between Beijing and Houston. One of the biggest advantages is that I can represent clients in both the U.S. and China now! I am still technically a consultant in China because I am not Chinese and cannot be admitted to the Chinese bar (but thanks to IntellStrategy, my colleagues can!). However, I will continue to manage all types of IP issues in China, focusing on patent licensing and litigation.
Further, I can use my Texas and New York bar cards again! I love my Chinese practice, but I miss arguing in court, taking deposition, and even (gulp!) managing discovery! Also, because DBL has an office in Europe, I can help companies enforce their patents simultaneously in the most important patent courts in the world.
Joining me in my move will be my entire Chinese team, including patent litigation superstar, Dragon Wang.
In case you are wondering, my short stint at my prior firm did not work out for reasons mostly related to conflicts. It is what it is, and I am very excited to work with my new colleagues!
The Fuzhou Intermediate People’s Court in China has granted Qualcomm's request for two preliminary injunctions against four Chinese subsidiaries of Apple Inc. The affected Apple products are the iPhone 6S, iPhone 6S Plus, iPhone 7, iPhone 7 Plus, iPhone 8, iPhone 8 Plus and iPhone X.
The patents at issue enable users to adjust and reformat the size and appearance of photographs, and to manage applications using a touch screen when viewing, navigating and dismissing applications on their phones.
I have not seen the order, but Apple is saying that the injunction only includes older versions of iOS. This is a developing issue and I will provide information as I receive it. What is clear, though, is that because this is a preliminary injunction, the injunction should NOT be stayed pending appeal. Also, there may be some political issues at play because whereas Qualcomm has paid its dues in China, Apple has never been a friend of China. One need only consider that Qualcomm is a supplier to some of the most important companies in China, whereas Apple is a competitor to those same companies.
FYI: Here is a good article on some of the details as they are known to Reuters.
Stay tuned - this one is big and could get bigger. I need to go now because I have to go file a bunch of cases in Fuzhou!
A very interesting article was recently published in China on why NPEs are good for China. It focuses on iPEL, an NPE that has over 1000 Chinese patent families. The article was published by IP House, a Chinese publisher that has a contract with the Chinese government and courts to publish the most database of IP-related court decisions in China. For a PDF of the article in Chinese and English, click here.
I have been asked for copies of various of my publications and presentations over the last few weeks, and have struggled with a way to make them available. Until I figure out a better way, here they are, with clickable links:
Welcome to the China Patent Blog by Erick Robinson. Erick Robinson's China Patent Blog discusses China's patent system and China's surprisingly effective procedures for enforcing patents. China is leading the world in growth in many areas. Patents are among them. So come along with Erick Robinson while he provides a map to the complicated and mysterious world of patents and patent litigation in China.
Erick Robinson is an experienced American trial lawyer and U.S. patent attorney based in Beijing. He is a Partner at Dunlap, Bennett & Ludwig PLLC, where he manages patent litigation, licensing, and prosecution throughout China.
The ideas and opinions at ChinaPatentBlog.com are my own as of the time of posting, have not been vetted with my firm or its clients, and do not necessarily represent the positions of the firm, its lawyers, or any of its clients. None of these posts is intended as legal advice and if you need a lawyer, you should hire one. Nothing in this blog creates an attorney-client relationship. If you make a comment on the post, the comment will become public and beyond your control to change or remove it.