同济大学：《中国知识产权保护》课程教学资源（试卷习题）试卷（2012-2013）

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Background: Established in 1989,Proview International Holdings Limited is one of the earliest Taiwanese enterprises entering to invest in China.Proview,listed in the Hong Kong Stock Market since 1997,focuses in the development,manufacturing and marketing of flat panel TVs and monitors. Over the Proview has advanced to become one of the best knownIT and enterprises in the world.In addition to state-of-the-art factories in China (Shenzhen.Wuhan Ningbo). Taiwan,Russia,Brazil and Mexico,Proview also has established sales and service locations in USA,Holland,UK,Belgium,Middle East plus various large to medium-sized cities in China. Proview Technology Shenzhen Com and m any,Limited (PTS)is Proview Group's largest pme elite force of al It 6.000 staff ogether with Ting edge development Proview Taiwan owns internationally well known brand names such as MAG,Proview and EMC It is also built good cooperative relationship with top tier IT and TV OEMs in the world. Dis In 2006.when Jobs a nd An ple Inc.started to note iPAD.it found that the trademark belongs Inte al Ho ngs ed Apple In. h ght the at 5.000 Pounds Ac demark to Apple Inc.,including the one in r Apple,P PTS Shenzhen viewed that the mother company Proview Taiwan does not own the trademark of iPAD”inCh na,Proview Taiwan only owned the trademark of"iPAD"in Europe,North American and Southeast Asia(mainly registered in 2000 by Proview Taiwan),whereas the trademark of"iPAD"was registered in 2001 by Proview Technology Shengzhen.At that time, the product of iPAD was still not born. Proview Shenzhen argued that Proview Taiwan had no right to sell its trademark in mainland China.Therefore the sale of iPAD in China is infringement of trademark of Proview Shenzhen. Before the sale of iPAD in China in 17th Sept.2010,Apple Inc.had discussed with Proview Shenzhen to change and register the ownership or"iPAD"at Trademark Office in China.but failed.Now,with the larg olume of sales in China,Proview Shenzhen claimed RMB10 Billion for the co mpensation of infringing of its trademark. Questions: 1.Can you please address the legal framework of protection of intellectual property right in China?20 Points 2.Do you think Apple Inc.has infringed the trademark right of Proview Shenzhen,and why? (Please use the trademark theory to explain,using domestic and intemational legal framework to explain the protection of IP Right).20 Points

Background: Established in 1989, Proview International Holdings Limited is one of the earliest Taiwanese enterprises entering to invest in China. Proview, listed in the Hong Kong Stock Market since 1997, focuses in the development, manufacturing and marketing of flat panel TVs and monitors. Over the years, Proview has advanced to become one of the best known IT and CE enterprises in the world. In addition to state-of-the-art factories in China (Shenzhen, Wuhan & Ningbo), Taiwan, Russia, Brazil and Mexico, Proview also has established sales and service locations in USA, Holland, UK, Belgium, Middle East plus various large to medium-sized cities in China. Proview Technology Shenzhen Company, Limited (PTS) is Proview Group’s largest development and manufacturing center. PTS used to have an elite force of about 6,000 staff, together with cutting edge equipments, large volume manufacturing, and efficient, fast-moving logistics. PTS has also established the development and manufacturing of TFT LCD and backlight modules. Proview Taiwan owns internationally well known brand names such as MAG, Proview and EMC. It is also built good cooperative relationship with top tier IT and TV OEMs in the world. Dispute: In 2006, when Jobs and Apple Inc. started to promote iPAD, it found that the trademark belongs to Proview International Holdings Limited, Taiwan. Later in 2009 Apple Inc. bought the trademark of “iPAD” from Proview Taiwan at 35,000 Pounds. According to Apple, Proview Taiwan has sold all of “iPAD” trademark to Apple Inc., including the one in mainland China. PTS Shenzhen viewed that the mother company Proview Taiwan does not own the trademark of “iPAD” in China, Proview Taiwan only owned the trademark of “iPAD” in Europe, North American and Southeast Asia (mainly registered in 2000 by Proview Taiwan), whereas the trademark of “iPAD” was registered in 2001 by Proview Technology Shengzhen. At that time, the product of iPAD was still not born. Proview Shenzhen argued that Proview Taiwan had no right to sell its trademark in mainland China. Therefore the sale of iPAD in China is infringement of trademark of Proview Shenzhen. Before the sale of iPAD in China in 17th Sept. 2010, Apple Inc. had discussed with Proview Shenzhen to change and register the ownership or “iPAD” at Trademark Office in China, but failed. Now, with the large volume of sales in China, Proview Shenzhen claimed RMB10 Billion for the compensation of infringing of its trademark. Questions: 1. Can you please address the legal framework of protection of intellectual property right in China? 20 Points 2. Do you think Apple Inc. has infringed the trademark right of Proview Shenzhen, and why? (Please use the trademark theory to explain, using domestic and international legal framework to explain the protection of IP Right). 20 Points

3.If the final judgment still rules that the Trademark of"iPAD"in China belongs to Proview Shenzhen and the agreement of Apple Inc.and Proview Taiwan cannot cover the trademark ownership of Proview Shenzhen,what can you suggest Apple Inc.to change its strategy in China?10 Points,simple answer is sufficient. II.Read the materials below and answer the questions: CHINT v.SCHNEIDER on Patent Infringement 2008-2-1Harry Yang.China IP.Patent] A first-instance judgment rendered by the Wenzhou Intermediate People's Court on September 26,2007 ordered defendant SCHNEIDER Electric Low Voltage(Tianjin)Co.,Ltd.(SELV)-a joint venture of SCHNEIDER Electric-to pay RMB 330 million in damages to Chinese plaintiff, CHINT,labeling it the"No.1 Case of Patent Infringement in China".Rarely in China,do awards in patent cases exceed RMB10 million.Generally,compensation ranges in the hundreds of thousands RMB or less.In the Provisions Regarding Law Application in Cases concering Patent Disputes from the Supreme People's Court it provides that a maximum of RMB 500,000 in damages may be given where the loss incurred by the infringed or the benefit received by the infringer is difficult to determine,and no patent royalties can be referenced. Consequently.the case has caught the attention of people everywhere.EU Trade Commissioner Peter Mandelson at the E.U.-China Summit 2007 said,"I regard the SCHNEIDER case as a test case of the level playing field in China on intellectual property protection that we want to see" As one of the largest producers and sellers of electrical apparatuses for industrial use in China, the CHINT Group leads the electrical transmission and distribution industries in the nation,with assets over RMB 5 billion and sales income in 2006 of RMB 18 billion.SELV is an equity joint venture established by SCHNEIDER Electric.The parent company is a multinational company incorporated in France,and listed as one of the World's Top 500 organizations,with the core business in electrical distribution,automation,and control.SCHNEIDER entered China in 1979 with a current investment totaling RMB 5 billion

3. If the final judgment still rules that the Trademark of “iPAD” in China belongs to Proview Shenzhen and the agreement of Apple Inc. and Proview Taiwan cannot cover the trademark ownership of Proview Shenzhen, what can you suggest Apple Inc. to change its strategy in China? 10 Points, simple answer is sufficient. II. Read the materials below and answer the questions: CHINT v. SCHNEIDER on Patent Infringement 2008-2-1Harry Yang, China IP,[Patent] A first-instance judgment rendered by the Wenzhou Intermediate People's Court on September 26, 2007 ordered defendant SCHNEIDER Electric Low Voltage (Tianjin) Co., Ltd. (SELV) - a joint venture of SCHNEIDER Electric – to pay RMB 330 million in damages to Chinese plaintiff, CHINT, labeling it the "No. 1 Case of Patent Infringement in China". Rarely in China, do awards in patent cases exceed RMB10 million. Generally, compensation ranges in the hundreds of thousands RMB or less. In the Provisions Regarding Law Application in Cases concerning Patent Disputes from the Supreme People's Court it provides that a maximum of RMB 500,000 in damages may be given where the loss incurred by the infringed or the benefit received by the infringer is difficult to determine, and no patent royalties can be referenced. Consequently, the case has caught the attention of people everywhere. EU Trade Commissioner Peter Mandelson at the E.U.-China Summit 2007 said, "I regard the SCHNEIDER case as a test case of the level playing field in China on intellectual property protection that we want to see". As one of the largest producers and sellers of electrical apparatuses for industrial use in China, the CHINT Group leads the electrical transmission and distribution industries in the nation, with assets over RMB 5 billion and sales income in 2006 of RMB 18 billion. SELV is an equity joint venture established by SCHNEIDER Electric. The parent company is a multinational company incorporated in France, and listed as one of the World's Top 500 organizations, with the core business in electrical distribution, automation, and control. SCHNEIDER entered China in 1979 with a current investment totaling RMB 5 billion

A "miniature low-voltage circuit breaker",is the patented product in dispute.It is a regular air switch widely used in the building industry and civil residences.which has replaced the traditional fuse.SCHNEIDER launched its Merlin Gerin mini circuit breaker C45 in Europe in the 1980s.The next generation C60 was introduced in China in 1993.Chinese manufacturers of miniature low-voltage circuit breaker include the CHINT Group(incorporated in 1984),DELIXI Group,and China People Electric Appliance Group,among others. It was alleged that the fast-closing contact mechanism (FCCM).included in the mini circuit breaker C65 of SCHNEIDER,had encroached on a CHINT utility model patent.However, according to Chu Yuansheng.legal counsel for SCHNEIDER,"the company (SCHNEIDER) began to sell the C60 products in Europe since 1991,which contained a few inventions (see Figure 1)including FCCM for the first time.In December 1996,it had the improvement patent of the C60 registered in France (FR9616151),with attached figures indicating the technical scheme of FCCM.At the end of 1997,it also applied for a patent for the improvement invention in the C60 in China (No.97125489.3),claiming the priority date to be December 23,1996.In 1999.SELV was authorized to use the improvement patent in the C60 and produce the mini circuit breaker C65." The case is only one of the several actions between CHINT and SCHNEIDER.SCHNEIDER has filed nearly 20 law suits against CHINT since 1993.The case in point is deemed as a response from CHINT."SCHNEIDER proposed to acquire 80%,51%and 50%of the CHINT equities in 1994,1998 and 2004,which were all rejected by CHINT",said Xu Zhiwu,legal counsel for CHINT."SCHNEIDER would sue CHINT in any country for infringement every time it was refused by CHINT.The lawsuit does not mean that CHINT is the real infringer,and the intellectual property right has been used by the multinational company as a weapon to contain or press CHINT so that CHINT agrees to the acquisition.Finding CHINT unsubdued, SCHNEIDER moves to obstruct CHINT products from being published or sold in the market, with an end to eradicate the Chinese leading player in the electric industry.For instance. SCHNEIDER had 'SCHINT registered maliciously in 1999 in France,Russia,Brazil,etc.,over ten countries in all,soon after CHINT had CHINT registered as a trademark in 1998.This is a good indication of SCHNEIDER to contain and press CHINT.Failing to acquire CHINT

A "miniature low-voltage circuit breaker", is the patented product in dispute. It is a regular air switch widely used in the building industry and civil residences, which has replaced the traditional fuse. SCHNEIDER launched its Merlin Gerin mini circuit breaker C45 in Europe in the 1980s. The next generation C60 was introduced in China in 1993. Chinese manufacturers of miniature low-voltage circuit breaker include the CHINT Group (incorporated in 1984), DELIXI Group, and China People Electric Appliance Group, among others. It was alleged that the fast-closing contact mechanism (FCCM), included in the mini circuit breaker C65 of SCHNEIDER, had encroached on a CHINT utility model patent. However, according to Chu Yuansheng, legal counsel for SCHNEIDER, "the company (SCHNEIDER) began to sell the C60 products in Europe since 1991, which contained a few inventions (see Figure 1) including FCCM for the first time. In December 1996, it had the improvement patent of the C60 registered in France (FR9616151), with attached figures indicating the technical scheme of FCCM. At the end of 1997, it also applied for a patent for the improvement invention in the C60 in China (No. 97125489.3), claiming the priority date to be December 23, 1996. In 1999, SELV was authorized to use the improvement patent in the C60 and produce the mini circuit breaker C65." The case is only one of the several actions between CHINT and SCHNEIDER. SCHNEIDER has filed nearly 20 law suits against CHINT since 1993. The case in point is deemed as a response from CHINT. "SCHNEIDER proposed to acquire 80%, 51% and 50% of the CHINT equities in 1994, 1998 and 2004, which were all rejected by CHINT", said Xu Zhiwu, legal counsel for CHINT. "SCHNEIDER would sue CHINT in any country for infringement every time it was refused by CHINT. The lawsuit does not mean that CHINT is the real infringer, and the intellectual property right has been used by the multinational company as a weapon to contain or press CHINT so that CHINT agrees to the acquisition. Finding CHINT unsubdued, SCHNEIDER moves to obstruct CHINT products from being published or sold in the market, with an end to eradicate the Chinese leading player in the electric industry. For instance, SCHNEIDER had ‘SCHINT' registered maliciously in 1999 in France, Russia, Brazil, etc., over ten countries in all, soon after CHINT had ‘CHINT' registered as a trademark in 1998. This is a good indication of SCHNEIDER to contain and press CHINT. Failing to acquire CHINT

SCHNEIDER turned to Delixi Group-another low-voltage appliance manufacturer in China-to establish Delixi Electric on November 16,2007.SCHNEIDER and Delixi each hold 50%of the equities in the new joint venture with the total investment of RMB1.8 billion. The background of the case is complicated.China IP has collected information from both parties including the following facts: Since 2004.SCHNEIDER has filed nearly 20 patent-related lawsuits against a number of CHINT products in Germany,Italy,France,and other countries in Europe.Several are still being litigated.Among them March 2005:SCHNEIDER filed a lawsuit against CHINT for patent infringement with a German court CHINT filed an answer and cross complaint to invalidate the SCHNEIDER patent with the Federal Patent Court.The Federal Patent Court declared the Schneider patent void and the action was soon withdrawn by SCHNEIDER. November 2005:SCHNEIDER filed a lawsuit against CHINT claiming design patent infringement with a court in Venice,Italy.CHINT answered.SCHNEIDER later withdrew the action. March 2006:SCHNEIDER filed a complaint against CHINT on three counts patent infringement. The judgments given by the Tribunal de Grande Instance(first instance)and the Appellate Court Paris (second instance)rejected the allegations SCHNEIDER and ordered it to compensate CHINT for losses.The case is still under appeal.The Tribunal de Grande Instance ordered SCHNEIDER to pay Euro 10,000 in damages to CHINT.The award was increased to Euro 15,000 by the Paris Appellate Court.The symbolic compensation makes us understand SCHNEIDER's real end-to use the intellectual property right as a weapon and obstruct the publication and distribution of CHINT products in Europe.Although CHINT has won the cases above,it has lost the opportunity oftimely entrance into the European market. SCHNEIDER has provided the following regarding litigations between the two companies SCHNEIDER sued CHINT in 2005 and 2006 for product infringement of Schneider's GV2 switch,Compact molded case switch,LRD thermal relay and mini circuit breaker C60,among others.The court in Venice,Italy issued a provisional injunction against the alleged infringing

SCHNEIDER turned to Delixi Group - another low-voltage appliance manufacturer in China – to establish Delixi Electric on November 16, 2007. SCHNEIDER and Delixi each hold 50% of the equities in the new joint venture with the total investment of RMB 1.8 billion." The background of the case is complicated. China IP has collected information from both parties including the following facts: Since 2004, SCHNEIDER has filed nearly 20 patent-related lawsuits against a number of CHINT products in Germany, Italy, France, and other countries in Europe. Several are still being litigated. Among them, March 2005: SCHNEIDER filed a lawsuit against CHINT for patent infringement with a German court CHINT filed an answer and cross complaint to invalidate the SCHNEIDER patent with the Federal Patent Court. The Federal Patent Court declared the Schneider patent void and the action was soon withdrawn by SCHNEIDER. November 2005: SCHNEIDER filed a lawsuit against CHINT claiming design patent infringement with a court in Venice, Italy. CHINT answered. SCHNEIDER later withdrew the action. March 2006: SCHNEIDER filed a complaint against CHINT on three counts patent infringement. The judgments given by the Tribunal de Grande Instance (first instance) and the Appellate Court Paris (second instance) rejected the allegations SCHNEIDER and ordered it to compensate CHINT for losses. The case is still under appeal. The Tribunal de Grande Instance ordered SCHNEIDER to pay Euro 10,000 in damages to CHINT. The award was increased to Euro 15,000 by the Paris Appellate Court. The symbolic compensation makes us understand SCHNEIDER's real end - to use the intellectual property right as a weapon and obstruct the publication and distribution of CHINT products in Europe. Although CHINT has won the cases above, it has lost the opportunity of timely entrance into the European market. SCHNEIDER has provided the following regarding litigations between the two companies: SCHNEIDER sued CHINT in 2005 and 2006 for product infringement of Schneider's GV2 switch, Compact molded case switch, LRD thermal relay and mini circuit breaker C60, among others. The court in Venice, Italy issued a provisional injunction against the alleged infringing

products of CHINT.The Appellate Court Dusseldorf also issued a provisional injunction against all alleged infringing products by CHINT,and affirmed the allegation in the first and second- instance trial regarding some of the alleged infringing products.The Supreme Court of Paris has been hearing a case regarding CHINTs alleged infringement of three patents concerning SCHNEIDER'S C60 products. 1.Two rulings in France:the court of first instance and the court of appeal reject SCHNEIDER's application for interim injunctions on NB1-63 mini circuit breaker (or the imitation of the C60) Statistically about 80%of interim injunction applications would be rejected.Presently,the case in point is being tried by the Paris Court of First Instance. 2.One judgment in Germany:the Federal Patent Court decides that a patent relating to GV2 is void (however,the same court determined the patent as valid in another case between SCHNEIDER and Siemens.The patent was also declared valid by SIPO of China).Now the case has been brought to the Supreme Court Certainly a Chinese court of law should determine patent infringement on the basis of the current laws and regulations and whether intellectual property rights have been used to compete against potential competitors.Regarding the case at bar,the first-instance judgment from the intermediate court of Wenzhou focused mostly on three points in dispute 1.Whether SCHNEIDER may use earlier implementation as a defense The first-instance judgment holds that although it is not explicitly provided in law,the defense on account of earlier implementation of a patent may be admissible since such a defense has the same jurisprudential basis as the prior art defense;the standard on novelty in the patent examination directive should be applied to determine on the technical content disclosed in the earlier patent application as a comparative document;and SCHNEIDER's defense of earlier implementation cannot sustain itself because the earlier patent(ZL97125489.3)does not disclose all the technical features of the alleged infringing product corresponding to the patented technical scheme. 2.Whether the alleged infringing product falls under patent protection

products of CHINT. The Appellate Court Düsseldorf also issued a provisional injunction against all alleged infringing products by CHINT, and affirmed the allegation in the first and second - instance trial regarding some of the alleged infringing products. The Supreme Court of Paris has been hearing a case regarding CHINT's alleged infringement of three patents concerning SCHNEIDER'S C60 products. 1. Two rulings in France: the court of first instance and the court of appeal reject SCHNEIDER's application for interim injunctions on NB1-63 mini circuit breaker (or the imitation of the C60). Statistically about 80% of interim injunction applications would be rejected. Presently, the case in point is being tried by the Paris Court of First Instance. 2. One judgment in Germany: the Federal Patent Court decides that a patent relating to GV2 is void (however, the same court determined the patent as valid in another case between SCHNEIDER and Siemens. The patent was also declared valid by SIPO of China). Now the case has been brought to the Supreme Court. Certainly a Chinese court of law should determine patent infringement on the basis of the current laws and regulations and whether intellectual property rights have been used to compete against potential competitors. Regarding the case at bar, the first-instance judgment from the intermediate court of Wenzhou focused mostly on three points in dispute: 1. Whether SCHNEIDER may use earlier implementation as a defense The first-instance judgment holds that although it is not explicitly provided in law, the defense on account of earlier implementation of a patent may be admissible since such a defense has the same jurisprudential basis as the prior art defense; the standard on novelty in the patent examination directive should be applied to determine on the technical content disclosed in the earlier patent application as a comparative document; and SCHNEIDER's defense of earlier implementation cannot sustain itself because the earlier patent (ZL97125489.3) does not disclose all the technical features of the alleged infringing product corresponding to the patented technical scheme. 2. Whether the alleged infringing product falls under patent protection

The first-instance judgment holds that for the"locking paw"as stated by SELV,alias"rocking arm"as in the Patent Claim,the alleged infringing product includes the technical features in Claim 1 and 2:for the "resilient tadpole-shaped piece which accumulates energy and resets elastically"as stated by SELV,which is a curved limiter,the alleged infringing product includes the technical features in Claim 2 regarding the curved limiter;for the"closing arm"as stated by SELV,which is a contact support,the alleged infringing product includes the technical features in Claim 1 and 2;to sum up,the infringing product is found to include all the necessary features in Claim I and 2 and falls into the protection for the utility model. 3.The amount of compensation The first-instance judgment holds that the commercial facts of SELV be used to calculate the profit of SELV from the infringement,as SELV does not provide the cost book;the amount of compensation is determined to be RMB 355,939,206.25 on account of the operating profit of SELV from August 2,2004 until July 31,2006;since this amount is higher than that claimed by CHINT which is RMB 334,869,872,RMB 334,869,872 is awarded. The judgment of first instance has been appealed to the Higher Court of Zhejiang Province. Because of the complexity and the wide attention to the case.The second-instance trial may prove to be costly in time.The first-instance judgment,has brought several disputed legal issues to the surface,including:the suspension of judicial proceedings involving utility model infringement because of patent invalidation,the grade jurisdiction for patent infringement involving subject matter in a large volume,technical comparison and questions for the defense of earlier implementation,and the compensation amount for utility model infringement.With these questions in mind,we invite lawyers from law firms globally to comment. Question: 1.Do you agree with the court's final opinions and reasoning?Why?(25 points) 2.Assume that the patent involved was filed on the date of Jan.1,2010,will a different outcome exist?Why?(25 points)

The first-instance judgment holds that for the "locking paw" as stated by SELV, alias "rocking arm" as in the Patent Claim, the alleged infringing product includes the technical features in Claim 1 and 2; for the "resilient tadpole-shaped piece which accumulates energy and resets elastically" as stated by SELV, which is a curved limiter, the alleged infringing product includes the technical features in Claim 2 regarding the curved limiter; for the "closing arm" as stated by SELV, which is a contact support, the alleged infringing product includes the technical features in Claim 1 and 2; to sum up, the infringing product is found to include all the necessary features in Claim 1 and 2 and falls into the protection for the utility model. 3. The amount of compensation The first-instance judgment holds that the commercial facts of SELV be used to calculate the profit of SELV from the infringement, as SELV does not provide the cost book; the amount of compensation is determined to be RMB 355,939,206.25 on account of the operating profit of SELV from August 2, 2004 until July 31, 2006; since this amount is higher than that claimed by CHINT which is RMB 334,869,872, RMB 334,869,872 is awarded. The judgment of first instance has been appealed to the Higher Court of Zhejiang Province. Because of the complexity and the wide attention to the case. The second -instance trial may prove to be costly in time. The first-instance judgment, has brought several disputed legal issues to the surface, including; the suspension of judicial proceedings involving utility model infringement because of patent invalidation, the grade jurisdiction for patent infringement involving subject matter in a large volume, technical comparison and questions for the defense of earlier implementation, and the compensation amount for utility model infringement. With these questions in mind, we invite lawyers from law firms globally to comment. Question: 1. Do you agree with the court’s final opinions and reasoning? Why? (25 points) 2. Assume that the patent involved was filed on the date of Jan.1, 2010, will a different outcome exist? Why? (25 points)

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