Introduction of the General Rules of the Civil Law Brings China into the Age of "Civil Code"
Recently, the General Rules of the Civil Law of the People's Republic of China (the "General Rules of the Civil Law") have been adopted at the Fifth Session of the 12th National People's Congress of the People's Republic of China and issued upon approval under the Order of the President No.66, and shall come into force as of October 1, 2017.
The General Rules of the Civil Law, comprised of 11 chapters with a total of 206 articles, provide for the civil law's basic principles, civil subjects, civil rights, civil justice acts, civil liability and limitation of actions and other fundamental systems on the civil law. The General Rules of the Civil Law lower the threshold age of a minor having limited capacity for civil conduct to the age of eight, add new provisions to protect interests of fetuses, and improve the guardianship system. Also, the General Rules of the Civil Law categorize legal persons into three groups, namely, the profit-making legal persons, non-profit legal persons and special legal persons, endowing an unincorporated association with the civil subject status and providing that unincorporated associations include the sole proprietorship enterprises, partnership enterprises and those professional service agencies not qualified as legal persons. Furthermore, the General Rules of the Civil Law make specific provisions on the protection of personal information, general provisions on intellectual property rights and also other provisions on the protection of data and online virtual properties. Although the General Rules of the Civil Law have been adopted, the General Principles of the Civil Law will not be repealed temporarily. Where there is any discrepancy between the two laws, the General Rules of the Civil Law shall prevail. (Source: http://www.npc.gov.cn/npc/xinwen/2017-03/15/content_2018907.htm)
SIPO Revises the Patent Examination Guidelines
Recently, the State Intellectual Property Office ("SIPO") has issued the Decision on Amending the Patent Examination Guidelines (the "Decision"), which shall come into force as of April 1, 2017.
The Decision makes it clear that to the extent of upholding the modification principles, the specific methods for modifying the letter requesting proprietary rights shall be generally limited to the deletion of the patent claims, the deletion of the technical solutions, the further limitation of the patent claims, and the correction of obvious errors. In particular, further limitation of the patent claims means the addition of one or more technical characteristics which are recorded in other patent claims to the patent claims, so as to narrow down the scope of protection. According to the Decision, for the invention patent application files that have been published but the granting of the patent right has not been publicly announced yet, relevant contents in the patent application files can be consulted and copied, including the application documents, publication documents, the notice and decision letter issued to the applicant in the preliminary examination, and main body of the reply given by the applicant to such notice; for a patent right that has been announced and granted, contents that can be consulted and copied shall include the application documents, priority documents and the patent evaluation report. (Source: http://126.96.36.199:8080/ogic/view/govinfo!detail.jhtml?id=3338)
SPC Issues the 16th Batch of Guiding Cases
Recently, the Supreme People's Court ("SPC") has distributed the Circular on Releasing the 16th Batch of Guiding Cases (the "Circular") for courts' reference in trying similar cases.
According to the Circular, the 16th batch includes a total of 10 guiding cases (No.78-No.87), all of which relate to the intellectual property field, including nine civil cases and one criminal case. Civil guiding cases mainly involve disputes over infringement upon the copyright, trademark rights, patent rights and rights of new plant varieties, disputes over the bundle trading in the field of anti-monopoly, and disputes over the abuse of dominant market position, while the criminal guiding case relates to the crime of counterfeiting trademarks. In particular, the guiding case No.78 is "Beijing Qihoo 360 Technology Co. Ltd. v. Tencent Technology (Shenzhen) Co. Ltd. and Shenzhen Tencent Computer System Co. Ltd. (dispute over the abuse of dominant market position)". Ruling of such case requires the consideration of several issues, such as how to determine the relevant market, whether it has the dominant market position or not, and whether it constitutes the act of abusing dominant market position prohibited under the Anti-monopoly Law. (Source: http://www.legaldaily.com.cn/index/content/2017-03/09/content_7045576.htm)
MOHRSS Revises the Administrative Provisions on Foreigners' Employment in China
Recently, the Ministry of Human Resources and Social Security ("MOHRSS") has distributed the Decision on Revising the Administrative Provisions on the Employment of Foreigners in China (the "Decision") which will come into force as of the date of promulgation.
The Decision involves revisions made to certain articles of the Administrative Provisions on the Employment of Foreigners in China ("Provisions"). To be specific, the first is changing the "occupational visa" set forth in Article 8 and Article 10 into the "Z visa"; the second is removing Article 14; the third is revising Article 15 to read "any foreigner who has obtained an approval to work in China may apply to the Chinese embassies, consulates and offices in foreign countries for the Z visa by presenting his or her permit and valid passport issued by his or her home country or any other eligible substitutes for the passport. Anyone who meets requirements of Item 2 of Article 9 may apply for the Z visa with the notice letter issued by China National Offshore Oil Corporation, while anyone who satisfies requirements of Item 3 of Article 9 may apply for the Z visa with the approved documents from the Ministry of Culture. Anyone who meets requirements of Paragraph 1 of Article 10 of the Provisions may apply for the Z visa with the document for a cooperation and exchange project, whereas anyone meeting requirements of Item 2 of Article 10 may apply for the Z visa by showing the registration certificate issued by administrative departments for industry and commerce." (Source: http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/gz/201703/t20170315_267970.html)
Public Comments Sought on the Anti-Monopoly Guidelines on Abuse of Intellectual Property Rights
Recently, the Office of Anti-monopoly Committee of the State Council has issued the Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights (Draft for Comment) (the "Draft for Comment") for public comments before April 21, 2017.
The Draft for Comment, organized into five chapters with a total of 27 articles, covers the general issues, monopoly agreements relating to intellectual property rights ("IPRs"), abuse of dominant market position relating to IPRs, concentration of undertakings relating to IPRs and other circumstances involving IPRs. According to the Draft for Comment, agreements involving IPRs include circumstances on joint research and development, cross-licensing, exclusive grant-back, no-challenge clause and formulation of standards etc. Besides, the Draft for Comment includes safe harbor provisions, clearly stating that where operators concerned fall under any of three conditions, one of which reads as "operators which compete against each other possess an aggregate market share of no more than 20 percent in the relevant market", an agreement involving IPRs reached among them is deemed as not monopolistic in most cases, unless there is evidence to the contrary. (Source: http://fldj.mofcom.gov.cn/article/zcfb/201703/20170302539418.shtml)