Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.05
Zhe Wang, Yifan Lin, Yajing Zhou
How to judge the formation of Malicious Incompatibility is a problem that cannot be circumvented and is difficult to solve in the trial of new types of unfair competition on the Internet. Although the revised Anti-Unfair Competition Law explicitly stipulates Malicious Incompatibility as unfair competition, it fails to provide a clear set of judgment criteria. Germany and the United States have respectively developed complete laws and regulations and created judgment rules to deal with new unfair competition disputes arising in the development of the Internet, providing China with a lot of referential trial ideas. By collecting and analyzing the judgment documents and trial ideas of previous cases, this paper, focusing on the internal logic of malice and incompatibility in the law, tries to judge whether the behavior constitutes Malicious Incompatibility considered from the perspective of subjective purposes and the objective effects caused by the behavior and with the method of value measurement.
{"title":"Judicial judgment of ‘Malicious Incompatibility’: based on the study of Chinese judicial practice","authors":"Zhe Wang, Yifan Lin, Yajing Zhou","doi":"10.4337/qmjip.2020.03.05","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.05","url":null,"abstract":"How to judge the formation of Malicious Incompatibility is a problem that cannot be circumvented and is difficult to solve in the trial of new types of unfair competition on the Internet. Although the revised Anti-Unfair Competition Law explicitly stipulates Malicious Incompatibility as unfair competition, it fails to provide a clear set of judgment criteria. Germany and the United States have respectively developed complete laws and regulations and created judgment rules to deal with new unfair competition disputes arising in the development of the Internet, providing China with a lot of referential trial ideas. By collecting and analyzing the judgment documents and trial ideas of previous cases, this paper, focusing on the internal logic of malice and incompatibility in the law, tries to judge whether the behavior constitutes Malicious Incompatibility considered from the perspective of subjective purposes and the objective effects caused by the behavior and with the method of value measurement.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"376-391"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43891901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.04
Renjun Bian
With a series of policies to stimulate innovation and patent activities, China has become a world leader in both patent applications and patent litigation. These major developments, together with the escalated US-China trade tensions, have made China an integral but controversial venue for international patent protection. The Chinese patent system, especially its detailed practice and cases, is in need of a comprehensive empirical study. This article analyzed 8766 Chinese patent invalidity cases decided between 2014 and 2016, which, together with my prior work on patent infringement lawsuits, offers a comprehensive picture on how the bifurcated patent system in China works. First, it found that only a small number, about 2.0 percent, of Chinese patents are ever subject to infringement or invalidity disputes, shedding light on the patent office's rational ignorance of a patent's validity at first place. Second, it found that the invalidity rate for invention patents in China (54.6%) was lower than in many other countries, such as the US (83.9%) and Germany (73%), indicating that the Chinese patent system is more pro-patentee than once believed. Third, it raised the question of Chinese patents’ quality based on various characteristics of these cases, including patent types and petitioners’ entity status.
{"title":"Post-grant patent review in China: an empirical analysis","authors":"Renjun Bian","doi":"10.4337/qmjip.2020.03.04","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.04","url":null,"abstract":"With a series of policies to stimulate innovation and patent activities, China has become a world leader in both patent applications and patent litigation. These major developments, together with the escalated US-China trade tensions, have made China an integral but controversial venue for international patent protection. The Chinese patent system, especially its detailed practice and cases, is in need of a comprehensive empirical study. This article analyzed 8766 Chinese patent invalidity cases decided between 2014 and 2016, which, together with my prior work on patent infringement lawsuits, offers a comprehensive picture on how the bifurcated patent system in China works. First, it found that only a small number, about 2.0 percent, of Chinese patents are ever subject to infringement or invalidity disputes, shedding light on the patent office's rational ignorance of a patent's validity at first place. Second, it found that the invalidity rate for invention patents in China (54.6%) was lower than in many other countries, such as the US (83.9%) and Germany (73%), indicating that the Chinese patent system is more pro-patentee than once believed. Third, it raised the question of Chinese patents’ quality based on various characteristics of these cases, including patent types and petitioners’ entity status.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"339-375"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49087381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.01
J. Lai
Patent law is considered to be an objective law, dealing with the objective subject matter of the ‘technical arts’. Yet, empirical studies show that patenting rates around the world are gendered. This article analyses the roots of the gender patent gap, and how this correlates to the invention and innovation processes. It shows that the gendered nature of the patent-regulated knowledge governance system forces women into traditionally male spaces and fields in order to partake in the extant patent game. Yet, when they enter those spaces and fields, they often find themselves unwelcome and subject to institutional, structural or organizational biases, which impinge upon their ability to invent, patent and commercialize. This article re-frames the discourse around women inventors. It argues that we have to stop focusing on the ‘women in science, technology, engineering and mathematics (STEM)’ narrative, because it is a distraction from the underlying problem that the Western knowledge governance system reflects the hegemonic powers at play. Instead, we need to re-think the knowledge governance system and the ecosystem it creates, in order to ensure egalitarian knowledge production and protection.
{"title":"Patents and gender: a contextual analysis","authors":"J. Lai","doi":"10.4337/qmjip.2020.03.01","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.01","url":null,"abstract":"Patent law is considered to be an objective law, dealing with the objective subject matter of the ‘technical arts’. Yet, empirical studies show that patenting rates around the world are gendered. This article analyses the roots of the gender patent gap, and how this correlates to the invention and innovation processes. It shows that the gendered nature of the patent-regulated knowledge governance system forces women into traditionally male spaces and fields in order to partake in the extant patent game. Yet, when they enter those spaces and fields, they often find themselves unwelcome and subject to institutional, structural or organizational biases, which impinge upon their ability to invent, patent and commercialize.\u0000\u0000This article re-frames the discourse around women inventors. It argues that we have to stop focusing on the ‘women in science, technology, engineering and mathematics (STEM)’ narrative, because it is a distraction from the underlying problem that the Western knowledge governance system reflects the hegemonic powers at play. Instead, we need to re-think the knowledge governance system and the ecosystem it creates, in order to ensure egalitarian knowledge production and protection.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/qmjip.2020.03.01","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43431541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.06
Phillip Johnson
It is usual for a court to grant a final injunction after a finding of patent infringement. There has been some doubt about how this applied when the patents covered essential medical products. In Evalve v Edwards Lifescience [2010] EWHC 513 (Pat), the court explored the role of the public interest in withholding injunctions and awarding damages in lieu. It construed the public interest narrowly in part due to the existence of compulsory licences. This discussion explores the court’s reasoning and suggests that an even greater link with compulsory licences should be adopted.
{"title":"The public interest and patent injunctions: Evalve v Edwards Lifescience [2020] EWHC 513 (Pat)","authors":"Phillip Johnson","doi":"10.4337/qmjip.2020.03.06","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.06","url":null,"abstract":"It is usual for a court to grant a final injunction after a finding of patent infringement. There has been some doubt about how this applied when the patents covered essential medical products. In Evalve v Edwards Lifescience [2010] EWHC 513 (Pat), the court explored the role of the public interest in withholding injunctions and awarding damages in lieu. It construed the public interest narrowly in part due to the existence of compulsory licences. This discussion explores the court’s reasoning and suggests that an even greater link with compulsory licences should be adopted.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"392-400"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45226076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.07
Oğulcan Ekiz
{"title":"Book review: Bhamati Viswanathan, Cultivating Copyright: How Creators and Creative Industries Can Harness Intellectual Property to Survive the Digital Age (Routledge, Abingdon, 2020) 242 pp.","authors":"Oğulcan Ekiz","doi":"10.4337/qmjip.2020.03.07","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.07","url":null,"abstract":"","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"401-405"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/qmjip.2020.03.07","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45850381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.03
Ke Yu, C. Darch
We build on the well-established critique, primarily in the US literature, of the following assumptions: (1) copyright protections serve to incentivise creativity; (2) copyright is designed with such incentivisation as its primary purpose; and (3) a standardized set of copyright protections should ideally be applicable to all forms of cultural production, across all situations in all countries. These assumptions lead to two fundamental conceptual flaws in much current copyright policy discourse: (1) it conflates concepts such as incentive, reward, and recognition; (2) it is nomothetic in character insofar as the existing structural and procedural diversity of the different cultural industries that it governs is inadequately acknowledged. Our critique in this article is not, therefore, a general one, but is limited to a specific theory of copyright, which pretends that copyright is an incentive to creativity while the evidence indicates that it is not. We highlight the importance of taking account of the whole ‘creativity value chain’ in the different industries with their various components – the creator, the copyright holder, the distributor, and the market. Drawing on case studies of three creative industries: literary writing, film, and fashion, we demonstrate that not only is there currently considerable heterogeneity among these industries, but that there has also been heterogeneity within each industry at different periods and in different contexts. We argue that this flexibility is a beneficial characteristic of the current functioning of copyright that should be defended against pressures in favour of harmonization.
{"title":"The drivers of creativity and innovation in copyright discourse: a value chain analysis across cultural industries","authors":"Ke Yu, C. Darch","doi":"10.4337/qmjip.2020.03.03","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.03","url":null,"abstract":"We build on the well-established critique, primarily in the US literature, of the following assumptions: (1) copyright protections serve to incentivise creativity; (2) copyright is designed with such incentivisation as its primary purpose; and (3) a standardized set of copyright protections should ideally be applicable to all forms of cultural production, across all situations in all countries. These assumptions lead to two fundamental conceptual flaws in much current copyright policy discourse: (1) it conflates concepts such as incentive, reward, and recognition; (2) it is nomothetic in character insofar as the existing structural and procedural diversity of the different cultural industries that it governs is inadequately acknowledged. Our critique in this article is not, therefore, a general one, but is limited to a specific theory of copyright, which pretends that copyright is an incentive to creativity while the evidence indicates that it is not. We highlight the importance of taking account of the whole ‘creativity value chain’ in the different industries with their various components – the creator, the copyright holder, the distributor, and the market. Drawing on case studies of three creative industries: literary writing, film, and fashion, we demonstrate that not only is there currently considerable heterogeneity among these industries, but that there has also been heterogeneity within each industry at different periods and in different contexts. We argue that this flexibility is a beneficial characteristic of the current functioning of copyright that should be defended against pressures in favour of harmonization.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"321-338"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41516479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-01DOI: 10.4337/qmjip.2020.02.06
Yong Wan, Hongxuyang Lu
In December 2018, Beijing Higher Court released the final decision associated with Christian Louboutin's trademark registration of the famous Red Sole Mark, holding that the mark should be categorized as a single-colour mark applied to a specific portion of the good and it could be registered as a trademark in China. This decision is the first Chinese judicial opinion associated with trademark registrability of a single-colour mark applied to a specific portion of the good, and therefore it plays a significant role in future trademark protection of single-colour trademarks.
{"title":"Trademark protection of single-colour trademarks: a study of the Chinese Louboutin case","authors":"Yong Wan, Hongxuyang Lu","doi":"10.4337/qmjip.2020.02.06","DOIUrl":"https://doi.org/10.4337/qmjip.2020.02.06","url":null,"abstract":"In December 2018, Beijing Higher Court released the final decision associated with Christian Louboutin's trademark registration of the famous Red Sole Mark, holding that the mark should be categorized as a single-colour mark applied to a specific portion of the good and it could be registered as a trademark in China. This decision is the first Chinese judicial opinion associated with trademark registrability of a single-colour mark applied to a specific portion of the good, and therefore it plays a significant role in future trademark protection of single-colour trademarks.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"255-264"},"PeriodicalIF":0.4,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49205670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-01DOI: 10.4337/qmjip.2020.02.00
J. Gibson
In January this year, in Casamitjana Costa v The League Against Cruel Sports, the Employment Tribunal held that ethical veganism is a philosophical belief under section 10 of the Equality Act 2010. This preliminary ruling on veganism was part of an unfair dismissal case, in which the claimant maintained that he was dismissed because of his ethical veganism. Although as a first instance decision it is merely persuasive on subsequent tribunals, the case has attracted wide publicity and any decision seeking to depart from it would likely be viewed as quite controversial without providing good reasons to distinguish itself. While some may say that the decision does not technically change the law, this is just half the story. Indeed, in many respects it changes everything.
{"title":"Brands make believe: ethical veganism and labelling in fashion","authors":"J. Gibson","doi":"10.4337/qmjip.2020.02.00","DOIUrl":"https://doi.org/10.4337/qmjip.2020.02.00","url":null,"abstract":"In January this year, in Casamitjana Costa v The League Against Cruel Sports, the Employment Tribunal held that ethical veganism is a philosophical belief under section 10 of the Equality Act 2010. This preliminary ruling on veganism was part of an unfair dismissal case, in which the claimant maintained that he was dismissed because of his ethical veganism. Although as a first instance decision it is merely persuasive on subsequent tribunals, the case has attracted wide publicity and any decision seeking to depart from it would likely be viewed as quite controversial without providing good reasons to distinguish itself. While some may say that the decision does not technically change the law, this is just half the story. Indeed, in many respects it changes everything.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/qmjip.2020.02.00","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41615530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-01DOI: 10.4337/qmjip.2020.02.08
T. A. Adekola
{"title":"Book review: Olasupo Owoeye, Intellectual Property and Access to Medicines in Africa: A Regional Framework for Access (Routledge, Abingdon 2019) 270 pp.","authors":"T. A. Adekola","doi":"10.4337/qmjip.2020.02.08","DOIUrl":"https://doi.org/10.4337/qmjip.2020.02.08","url":null,"abstract":"","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"269-270"},"PeriodicalIF":0.4,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/qmjip.2020.02.08","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47525602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-01DOI: 10.4337/qmjip.2020.02.03
B. Mukoro, N. Nwafor, T. O. Umahi, G. Onuoha, B. Otunta
There is disagreement about entitlement to, and the scope, of intellectual property rights over research knowledge. This article explores jurisprudential perspectives on ownership of research knowledge. It also features the conflict between African and western conceptions of intellectual property, and how this has affected the exploitation of indigenous knowledge with the resultant impact on traditional knowledge institutions. In modern times, the allocation of rights is relatively settled in such relationships as between employer and employee, the researcher and the funder. Between researcher and publisher, digital technology, which ensures wider circulation, has led to claims for a re-definition of the relationship under which the researcher traditionally licensed his copyright to the publisher. A similar re-definition is called for with respect to research subjects in certain research environments. In particular, the result of research conducted with user-generated data in multi-sided business models like social media sites is implicated. The research finds that there is no generic solution that will apply to all relationships but that laws should be tailored to each relationship pair, in line with the suggestions in this paper. African traditional knowledge is denied protection by criteria such as non-disclosure because of the African collectivist notion of person. While Africans are collectivist, westerners are individualistic. It is concluded that on closer inspection there are analogues in African and western notions of intellectual property that could be used to resolve seeming conflicts and protect traditional knowledge.
{"title":"Jurisprudence of intellectual property in research: African, western and modern perspectives","authors":"B. Mukoro, N. Nwafor, T. O. Umahi, G. Onuoha, B. Otunta","doi":"10.4337/qmjip.2020.02.03","DOIUrl":"https://doi.org/10.4337/qmjip.2020.02.03","url":null,"abstract":"There is disagreement about entitlement to, and the scope, of intellectual property rights over research knowledge. This article explores jurisprudential perspectives on ownership of research knowledge. It also features the conflict between African and western conceptions of intellectual property, and how this has affected the exploitation of indigenous knowledge with the resultant impact on traditional knowledge institutions. In modern times, the allocation of rights is relatively settled in such relationships as between employer and employee, the researcher and the funder. Between researcher and publisher, digital technology, which ensures wider circulation, has led to claims for a re-definition of the relationship under which the researcher traditionally licensed his copyright to the publisher. A similar re-definition is called for with respect to research subjects in certain research environments. In particular, the result of research conducted with user-generated data in multi-sided business models like social media sites is implicated. The research finds that there is no generic solution that will apply to all relationships but that laws should be tailored to each relationship pair, in line with the suggestions in this paper. African traditional knowledge is denied protection by criteria such as non-disclosure because of the African collectivist notion of person. While Africans are collectivist, westerners are individualistic. It is concluded that on closer inspection there are analogues in African and western notions of intellectual property that could be used to resolve seeming conflicts and protect traditional knowledge.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"200-216"},"PeriodicalIF":0.4,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45411703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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