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Recently, the State Intellectual Property Office issued three guiding cases, namely: Guiding Case No. 6: Understanding and Application of the Wenzhou Intellectual Property Office in Zhejiang Province’s Case of Repeated Infringement of the “Transmission Mechanism of Three-dimensional Packaging Machine” Patent Rights, Guiding Case No. 7 : Understanding and application of the case in which the Weihai Market Supervision and Administration Bureau of Shandong Province investigated and punished the use of recycled beer bottles to infringe the exclusive rights of the registered trademark "Tsingtao Beer", Guiding Case No. 8: The Shanghai Intellectual Property Office reached a mediation agreement in handling design patent infringement disputes and Understood and applied upon judicial confirmation.

Guiding Case No. 6: Understanding and Application of the Wenzhou Intellectual Property Office of Zhejiang Province’s Case of Repeated Infringement of the “Transmission Mechanism of Three-Dimensional Packaging Machine” Patent Rights

Basic case facts

On December 7, 2017, Ruian Haoyun Machinery Co., Ltd. complained to the Wenzhou Intellectual Property Office that Guo had infringed its utility model patent for "Transmission Device of Three-Dimensional Packaging Machine" (Patent No. ZL201620913636.X). On November 12, 2018, the Wenzhou Intellectual Property Office made an administrative ruling, confirming that the infringement was established, and ordered Guo to stop producing and selling infringing products. Guo did not file an administrative lawsuit. On July 1, 2019, Ruian Haoyun Machinery Co., Ltd. once again complained to the Wenzhou Intellectual Property Office that similar products produced and sold by Guo infringed on the same patent.

On September 4, 2019, the Wenzhou Intellectual Property Office made an administrative ruling, confirming that the infringement was established, and ordered Guo to immediately stop the infringement and destroy the infringing products. Guo refused to accept the decision and filed an administrative lawsuit. On March 24, 2020, the Ningbo Intermediate People’s Court of Zhejiang Province rejected Guo’s lawsuit. Guo appealed to the Supreme People's Court and later withdrew the case. On February 26, 2021, the Wenzhou Intellectual Property Office launched an investigation into Guo's suspected repeated infringement of the same patent right. According to relevant administrative rulings and judgment documents, it was determined that the infringement committed by Guo constituted repeated infringement.

Guo’s repeated infringement of the patent right of “Three-dimensional Packaging Machine Transmission Device” owned by Ruian Haoyun Machinery Co., Ltd. (Patent No. ZL201620913636. Behavior. In accordance with Article 46 of the Regulations, the Wenzhou Municipal Administration for Market Regulation ordered Guo to stop his infringement and imposed an administrative penalty of 65,000 yuan on him.

Understand and apply

1. Selection process and guiding significance

The case was reported to the State Intellectual Property Office by the Zhejiang Provincial Intellectual Property Office. According to the "Regulations of the State Intellectual Property Office on the Guidance of Intellectual Property Administrative Enforcement Cases (Trial)", after review and selection, expert review, and review by the Case Guidance Working Committee, this case has guiding significance in the identification and regulation of repeated patent infringements. , can be used as an alternative guidance case. In March 2022, this case was reviewed and approved by the State Intellectual Property Office's executive meeting and released as the second batch of guiding cases.

This case is the application of relevant provisions on repeated patent infringements. Repeated patent infringement is a typical intentional infringement. The infringer's subjective intention and fault are obvious, objectively causing greater economic losses to the patentee, and causing greater damage to the order of fair competition in the market, and should bear heavier legal liability. However, the determination of repeated patent infringement is a complex legal issue, involving the determination of infringement, comparison of different infringements, etc., and sometimes it is necessary to see through the illusion that the actual infringer has changed his "vest".

The current Patent Law of the People's Republic of China and the Implementing Rules of the Patent Law do not provide for repeated patent infringements. Article 20 of the departmental regulations "Patent Administrative Enforcement Measures" stipulates that for repeated infringements, the department managing patent affairs may directly make a decision upon request to order an immediate cessation of the infringement. At present, Beijing, Tianjin, Hebei, Zhejiang, Fujian, Henan, Hubei, Guangdong, Chongqing, Sichuan, Guizhou, Xinjiang and other provinces (autonomous regions and municipalities directly under the Central Government) clearly stipulate in local regulations that administrative penalties can be imposed for repeated patent infringements.

This guiding case accurately applies local regulations and clarifies the identification standards and administrative penalty procedures for repeated patent infringement. For situations where the respondent does not stop the infringement after the administrative ruling or judicial judgment comes into effect, and continues or re-infringes the same patent right, the provisions on repeated patent infringement can be applied to regulate it, that is, the department managing patent affairs will punish the party for repeated infringement of the same patent right. After an administrative ruling is made, the department responsible for patent enforcement may impose administrative penalties on repeated patent infringements in accordance with local regulations. This guidance case effectively protects the innovation enthusiasm of right holders and helps maintain the order of market competition. It also reflects the important role of local regulations in my country's formal legal sources and is of great significance for further improving and perfecting my country's patent legal system.

2. Interpretation and explanation of key points of the case

The key points of this guiding case are: If an actor infringes on the patent rights of others and does not stop the infringement after the administrative ruling or judicial judgment takes effect, but continues or re-performs the infringement on the same patent right, it can be directly determined as a repeat in accordance with local regulations. Infringements and administrative penalties will be imposed. Under normal circumstances, when determining repeated patent infringement, the following factors generally need to be considered.

(1) Local regulations regarding repeated patent infringement

Our country's formal legal sources include the constitution, laws, administrative regulations, local regulations and administrative regulations, etc. Article 72 of the "Legislative Law of the People's Republic of China" stipulates that the people's congresses of provinces, autonomous regions, and municipalities directly under the Central Government and their standing committees shall, based on the specific conditions and actual needs of their respective administrative regions, make decisions on the premise that they do not conflict with the constitution, laws, and administrative regulations. Under this circumstance, local regulations can be formulated. Paragraph 2 of Article 73 of the "Legislative Law of the People's Republic of China" stipulates that in addition to the matters stipulated in Article 8 of the Law, if the state has not formulated laws or administrative regulations on other matters, provinces, autonomous regions, municipalities directly under the Central Government and cities divided into districts, Autonomous prefectures may first formulate local regulations based on their local specific conditions and actual needs. Article 12 of the "Administrative Punishment Law of the People's Republic of China" stipulates that local regulations may set administrative penalties other than restricting personal freedom and revoking business licenses.

According to the above provisions, in the case where the Patent Law of the People's Republic of China and the Implementing Rules of the Patent Law do not clearly provide for repeated patent infringements, local regulations can provide for the identification and punishment of repeated patent infringements. For example, Article 51 of the Zhejiang Provincial Patent Regulations stipulates that repeated infringement as referred to in these Regulations refers to the infringement again by the same infringer after the People's Court or the patent administrative department has determined in accordance with the law that he has infringed the patent rights of others and made a ruling or decision. acts under the same patent. Article 46 of the "Patent Regulations of Zhejiang Province" stipulates that if there is repeated infringement as stipulated in Article 22, paragraph 1, of these Regulations, the patent administration department shall order the infringer to stop the infringement, confiscate the illegal gains, and may impose penalties on the illegal gains A fine of not less than two times but not more than four times; if there is no illegal income, a fine of not more than 200,000 yuan may be imposed.

(2) Judgment of relevant elements of previous behavior and subsequent behavior

If the infringer of the previous act (or first infringement) and the later act are the same, the latter act can be determined as repeated patent infringement based on the circumstances of the case. If the infringing subjects of the previous act and the subsequent act are different, but the actual controllers are the same or there is a specific relationship between the actual controllers, or the infringing subjects of the former act and the subsequent act have mixed legal person personalities or other related relationships in the sense of company law, there may also be The possibility of determining the subsequent behavior as repeated patent infringement needs to be determined based on the specific circumstances of the case.

The current Patent Law of the People's Republic of China stipulates five types of infringement that should be regulated, namely manufacturing, use, offering for sale, sale, and import. When both the previous and subsequent acts are infringements involving the implementation of the patent without the permission of the patentee, the infringer has subjective intent, and the specific type of behavior does not need to be considered when determining repeated patent infringement. For example, if the former conduct involves manufacturing and selling patented products, and the later conduct involves the use of the patented products, the latter conduct can still be determined as repeated patent infringement.

(3) Determination of the starting time for repeated patent infringements

The "Reply of the State Intellectual Property Office on Issues Related to Repeated Patent Infringements (Guozhifa Baohanzi [2021] No. 133)" points out that when the court's enforcement procedure for the first infringement ends, or the right holder's application for court enforcement expires, The date can be determined as the end of the administrative and judicial proceedings related to the first infringement, and subsequent infringements are considered repeated infringements.

Regarding administrative adjudication cases of patent infringement disputes, Article 53 of the "Administrative Enforcement Law of the People's Republic of China" stipulates that if the party concerned does not apply for administrative review or initiate administrative litigation within the statutory time limit, and fails to implement the administrative decision, the administrative department without administrative enforcement power shall The agency may apply to the people's court for compulsory execution in accordance with the provisions of this chapter within three months from the expiration of the time limit. Article 158 of the Supreme People's Court's "Interpretation on the Application of the Administrative Procedure Law of the People's Republic of China" (Fa Interpretation [2018] No. 1) stipulates that administrative agencies shall make rulings on civil disputes between equal parties in accordance with the authorization of the law. Afterwards, if the party concerned neither initiates a lawsuit nor performs the performance within the statutory time limit, and the administrative agency that made the ruling fails to apply to the people's court for compulsory execution within the time limit for applying for enforcement, the right holder or his heir or right holder determined by the effective administrative ruling shall have six months to You can apply to the People's Court for compulsory execution. For patent infringement civil cases, the Civil Procedure Law stipulates that "the period for applying for enforcement is two years." If the patent management department or the right holder applies to the People's Court for compulsory execution within the above statutory period, and the enforcement procedure of the People's Court ends, or the right holder fails to apply to the court for compulsory execution within the statutory period, it can be deemed that the legal proceedings related to the first infringement have ended. .

In this case, the Wenzhou Intellectual Property Office made an administrative ruling on November 12, 2018, ordering Guo to stop producing and selling infringing products. Subsequently, Guo did not file an administrative lawsuit within fifteen days from the date of the administrative ruling, nor did he implement the administrative decision. On July 1, 2019, Ruian Haoyun Machinery Co., Ltd. once again complained to the Wenzhou Intellectual Property Office that similar products produced and sold by Guo infringed on the same patent. According to the relevant provisions of the "Administrative Enforcement Law of the People's Republic of China" and "Interpretation on the Application of the Administrative Litigation Law of the People's Republic of China (Fa Interpretation [2018] No. 1)", this time has exceeded the end of legal proceedings related to the first infringement. . On September 4, 2019, the Wenzhou Intellectual Property Office made an administrative ruling. Later, Guo filed an administrative lawsuit, and the first-instance judgment rejected Guo's claim. After Guo appealed and then withdrew the lawsuit, the first-instance judgment came into effect. Accordingly, the Wenzhou Municipal Intellectual Property Office determined that Guo had committed repeated patent infringements based on relevant administrative rulings and effective judgments, and the Wenzhou Municipal Administration for Market Regulation imposed an administrative penalty on him, with a fine of 65,000 yuan.

This case is a specific application of the "Patent Law of the People's Republic of China" and the "Patent Law Implementing Rules", especially the local regulations regarding the identification and punishment of repeated patent infringements. It has formed a powerful attack on repeated patent infringements and set an example for its regulation. It can better protect the legitimate rights and interests of patentees and help create a better business and innovation environment.

Guiding Case No. 7: Understanding and Application of the Case of Weihai Market Supervision and Administration Bureau of Shandong Province Investigating and Prosecuting the Infringement of the Exclusive Rights of the "Tsingtao Beer" Registered Trademark by Using Recycled Beer Bottles

Basic case facts

In March 2020, Tsingtao Beer (Rongcheng) Co., Ltd. complained to the Weihai Municipal Administration for Market Regulation, reflecting that a company in Weihai (hereinafter referred to as the respondent) had infringed the exclusive right to register the trademark "Tsingtao Beer" and "TSINGTAO". After investigation, Tsingtao Beer Co., Ltd. registered trademark No. 1304176 "Tsingtao Beer" and trademark No. 1351701 "TSINGTAO" on 32 categories of "beer" and other commodities. Beer bottles produced by Tsingtao Beer Co., Ltd. have "Tsingtao Beer" and "TSINGTAO" embossed text on the bottleneck. The respondent has long used recycled old wine bottles as its own beer containers in accordance with industry practice. Among them, the 600ml old wine bottles include Tsingtao Beer bottles with "Tsingtao Beer" and "TSINGTAO" embossed text on the bottle neck. During use, the respondent It sold its own trademark and packaging, but did not effectively block the embossed text of "Tsingtao Beer" and "TSINGTAO" on the bottle neck.

In the process of producing and selling beer, the respondent used recycled beer bottles with the embossed text of "Tsingtao Beer" and "TSINGTAO" as beer product containers. After cleaning the original paper labels of the Tsingtao Beer bottles, they affixed them own trademarks and packaging for sales, but did not effectively block the embossed text of "Tsingtao Beer" and "TSINGTAO" on the neck of the bottle, which could easily cause the relevant public to misunderstand the source of the product, or mistakenly believe that the parties involved are related to Tsingtao Beer Co., Ltd. Whether there is a specific connection between them, infringement of the exclusive right to use the registered trademark "Tsingtao Beer" and "TSINGTAO" constitutes an infringement of the exclusive right to use a registered trademark as stipulated in Article 57, Item 7 of the "Trademark Law of the People's Republic of China". The case-handling agency shall order the person to use the registered trademark in accordance with the law. The complainant immediately stopped the infringing behavior and imposed an administrative penalty of 30,000 yuan.

Understand and apply

1. Selection process and guiding significance

The case was handled by the Weihai Municipal Market Supervision and Administration Bureau of Shandong Province. The case-handling agency determined in accordance with the law that the behavior of the party constituted an infringement of the exclusive right to use a registered trademark as stipulated in Article 57, Item 7 of the Trademark Law of the People's Republic of China, and imposed administrative penalties on the party. After the administrative penalty decision was made, the party concerned did not file an administrative reconsideration or initiate an administrative lawsuit. Cases are recommended by the Shandong Provincial Intellectual Property Office to the State Intellectual Property Office. According to the "Regulations of the State Intellectual Property Office on the Guidance of Intellectual Property Administrative Enforcement Cases (Trial)", after review and selection, expert review, and case guidance working committee review, the case involves "recycling of containers with registered trademarks of others for reuse" The issue of behavioral identification of "protection of exclusive rights to registered trademarks" has reference significance in guiding the handling of similar cases and can be used as an alternative guidance case. In March 2022, this case was reviewed and approved by the State Intellectual Property Office's executive meeting and released as the second batch of guiding cases.

This case involves the protection of registered trademark exclusive rights in the field of recycling containers bearing other people’s registered trademarks for reuse. In recent years, such cases have occurred frequently. Although both administrative and judicial practices believe that these cases constitute trademark infringement, there is still a problem of unclear terms for the qualitative basis of the cases. According to the national resource recycling policy and industry practice, the recycling and reuse of glass containers is allowed, but the reuse should also be in compliance with laws and regulations. Goods that are refilled and sold by recycling other people's containers are often the same or similar to the right holder's goods. If the embossed text and other marks that are difficult to remove are not effectively blocked before being put on the market again, it is easy for the relevant public to know the source of the goods. Any misunderstanding or misunderstanding about whether there is a specific connection between the producer of the goods and the owner of the registered trademark on the container, thereby infringing upon the legitimate rights and interests of the registered trademark owner, should be stopped and corrected. The handling of this case will help solve the problems of difficulty in identifying similar cases and unclear qualitative basis clauses. While implementing the concept of green development, it will further standardize the market order of the recycling and reuse industry.

2. Understanding and explaining the key points of the case

If the same or similar goods are put back on the market for sale, but the embossed text of another person's registered trademark on the beer bottle is not effectively blocked, which may easily lead to confusion, it is a trademark infringement act that causes other damage to the exclusive rights of other people's registered trademarks.

The characterization of the issues involved in this case is a difficult problem in the protection of exclusive rights to trademarks. The focus issues of this guidance case include: 1. Whether the embossed words "Tsingtao Beer" and "TSINGTAO" that cannot be removed on recycled beer bottles constitute trademark use; 2. Whether the trademark registrant has the right to prohibit others from recycling beer bottles Entering the circulation field; 3. Whether the use of the original trademark on recycled beer bottles is an infringement; 4. The application of specific provisions.

(1) Whether it constitutes trademark use

Article 48 of the Trademark Law of the People's Republic of China stipulates that the use of trademarks refers to using trademarks on goods, product packaging or containers, and commodity transaction documents, or using trademarks in advertising, exhibitions, and other commercial activities. The act of identifying the source of goods. Article 4, Paragraph 1 of the "Trademark Infringement Judgment Standards" stipulates that the specific forms of expression of a trademark on goods, commodity packaging, containers and commodity transaction documents include but are not limited to direct affixing, engraving, branding or weaving. Attached to products, product packaging, containers, labels, etc., or used on product attached labels, product manuals, introduction brochures, price lists, etc. According to the above regulations, the embossed words "Tsingtao Beer" and "TSINGTAO" engraved on beer bottles are used as trademarks regardless of their form or function. Recycled beer bottles contain the trademarks of the original rights holders that cannot be removed, such as the embossed text of "Tsingtao Beer" and "TSINGTAO". If not effectively obscured, they can still be used as commercial logos to identify the source of the goods. Although the recycled beer bottles are marked with the trademarks of other manufacturers, it cannot be denied that even if the relevant public can identify the true source of the goods through the trademarks of other manufacturers affixed to the beer bottles, consumers may still produce the beer. Awareness of a specific connection with Tsingtao Brewery Co., Ltd. Therefore, in this case, the original "Tsingtao Beer" and "TSINGTAO" logos on the allegedly infringing products still played a role in distinguishing the source of the goods, constituting trademark use.

(2) Whether it has the right to prohibit

Normally, when a trademark registrant sells goods bearing a trademark to the market, the property rights and interests it has obtained based on the value of the trademark have been realized, and the exclusive right to use the trademark for the "trademark" on the goods is deemed to be "exhausted." The buyer of a commodity, that is, the owner of the property right of the commodity, has the right to resell the commodity, thereby achieving the purpose of "making the best use of the commodity." However, if there is a substantial change in the content of the goods, such that the goods that continue to be circulated are no longer the same goods as the goods originally put on the market by the trademark registrant or licensee, which may easily lead to confusion and hinder the function of the trademark in distinguishing the source of the goods, In this case, the "exhaustion of rights" principle should not apply and should be prohibited.

In this case, Tsingtao Beer Co., Ltd. sold products with the embossed words "Tsingtao Beer" and "TSINGTAO" on the bottles. The respondent recycled the bottles without removing or effectively covering the words "Tsingtao Beer" and "TSINGTAO". In the case of trademarks, the respondent continued to sell its own beer. Although the respondent had affixed its own trademark on the bottles, the embossed words "Tsingtao Beer" and "TSINGTAO" were highly recognizable, which could easily lead to confusion and hinder the trademark. The performance of the function of distinguishing the source of goods falls into the above-mentioned situations that should be prohibited.

(3) Whether it constitutes an infringement

Old bottles are recycled and reused. The original trademarks on the old bottles usually have three display methods. The first is to affix bottle stickers with trademark logos. After the bottle stickers are removed, other manufacturers can continue to use them. The second is that in addition to the bottle sticker in the first situation, the wine bottle also has the embossed trademark of the original trademark registrant, such as the embossed text of "Tsingtao Beer" and "TSINGTAO" in this case. If these embossed words are not effectively obscured during recycling, they will be within the range of consumers' visual perception. Even if they are marked with other manufacturers' trademarks, consumers may still mistakenly believe that the product has a specific connection with Tsingtao Beer Co., Ltd., which will affect Qingdao. Product reputation and brand image of Beer Co., Ltd. Therefore, this kind of reuse actually destroys the identification function of the original trademark, easily leads to confusion among consumers about the source of the goods, and constitutes trademark infringement. The third is that the beer bottle itself has been registered as a three-dimensional trademark. In this case, if other manufacturers recycle, fill and sell the same or similar goods, it is a trademark infringement.

(4) Application of specific provisions

Article 57 of the Trademark Law of the People's Republic of China stipulates seven acts that infringe upon the exclusive right to use a registered trademark. One is using the same trademark as the registered trademark on the same product without the permission of the trademark registrant; Without the permission of the trademark registrant, using a trademark that is similar to its registered trademark on the same kind of goods, or using a trademark that is the same or similar to its registered trademark on similar goods, which is likely to cause confusion; third, selling products that infringe the exclusive rights of registered trademarks goods; fourth, counterfeiting or unauthorized manufacturing of registered trademarks of others or selling counterfeit or unauthorized registered trademarks; fifth, replacing the registered trademark without the consent of the trademark registrant and putting the goods with the replaced trademark back on the market; Sixth, deliberately providing convenient conditions for infringing the exclusive rights of others' trademarks and helping others to infringe the exclusive rights of trademarks; Seventh, causing other damage to others' exclusive rights to registered trademarks.

The main dispute in this case is whether the first or seventh item of this article applies. In administrative law enforcement, because in accordance with Article 61 of the Trademark Law of the People's Republic of China, Article 213 of the Criminal Law of the People's Republic of China and relevant criminal judicial interpretations, Article 6 of the Trademark Law of the People's Republic of China applies. Article 57, Paragraph 1: If the amount of illegal business operations or illegal income reaches the statutory amount, the administrative agency shall transfer the relevant case to the judicial agency for criminal liability. Taking into account the private nature of intellectual property rights and the principle of "modesty" in criminal law, the use of criminal penalties is only considered when exhausting administrative, civil and other non-criminal means are still insufficient to suppress a certain illegal behavior or protect the legitimate rights and interests of the right holder. Therefore, administrative agencies generally determine that this behavior is an act that causes other damage to the exclusive rights of others to register trademarks, so as to achieve an organic unity of legal effects and social effects.

On October 19, 1995, the Trademark Office of the former State Administration for Industry and Commerce made it clear in the "Reply to the Request for Instructions on Whether Using Used Glass Containers to Fill Beverages for Sale Constitutes Trademark Infringement" (Trademark Management [1995] No. 373) that there are still If other people purchase various types of glass beverage containers with value and are attached with irremovable trademark patterns and then fill them with their own beverages for sale, the trademark patterns should be completely covered. If the registered trademark of others is not covered, or the main part of the trademark pattern is still exposed after covering, it is a trademark infringement act that causes other damage to the exclusive right of others to register a trademark. On November 20, 2019, the State Intellectual Property Office pointed out in the "Reply on whether filling and selling beer using recycled old beer bottles constitutes trademark infringement" (Guozhifa Baohanzi [2019] No. 231) that "Tsingtao Beer" The embossed text "TSINGTAO" is an inherent symbol of recycled wine bottles, and the "Tsingtao Beer" trademark was administratively recognized as a well-known trademark in 1991 and is well-known to the relevant public. Although others use their own trademarks on bottle labels, consumers They will notice the highly recognizable embossed logos of "Tsingtao Beer" and "TSINGDAO", and the relevant public may also mistakenly believe that there is a specific connection with the trademark registrant such as investment, licensing or cooperation, but generally they will not mistakenly think that the goods or services involved in the case are is produced or provided by the registered trademark owner, that is, it is distinguished from the natural confusion caused by the use of the same trademark on the same kind of goods. This behavior constitutes infringement of registration as stipulated in Article 57, Item 7 of the Trademark Law of the People's Republic of China. Trademark exclusive rights behavior.

The recycling and reuse of second-hand containers circulating in the market that meet safety standards is in line with the environmental protection policy of making the best use of materials and saving resources. It is a direct manifestation of the implementation of the concept of green development and should be encouraged and promoted. However, during the recycling process, companies should abide by relevant national laws and regulations to avoid infringing on the exclusive rights of others to register trademarks. For recycled bottles with specific trademarks or commercial logos of the original trademark registrant, recycling companies should take certain measures to effectively cover and remove the original trademarks and logos. At the same time, they should also try to use them in prominent positions on old bottles. Mark your own trademark information in eye-catching fonts to distinguish it from the original trademark logo, achieving the effect of recycling old bottles without infringing on the exclusive rights of others' registered trademarks.

Guiding Case No. 8: The Shanghai Intellectual Property Office reached a mediation agreement in handling a design patent infringement dispute and it was judicially confirmed. The understanding and application of the case

Basic case facts

Markor International Household Products Co., Ltd. discovered that a number of products promised to be sold by a Shanghai company were suspected of infringing on multiple design patents owned by it, so it filed an administrative ruling on patent infringement disputes with the Shanghai Intellectual Property Office on May 25, 2020. ask. On June 1, the Shanghai Intellectual Property Office accepted the above series of cases and presided over mediation based on the willingness of both parties to mediate. On September 29, the two parties signed an administrative mediation agreement on patent infringement disputes.

On October 20, both parties applied for judicial confirmation of the mediation agreement to the Shanghai Intellectual Property Court. The Shanghai Intellectual Property Court reviewed the application materials submitted by the parties and the form and content of the mediation agreement in accordance with the law, and issued a civil ruling on the same day. Confirm that the mediation agreement reached by both parties is valid. If one party refuses to perform or fails to perform in full, the other party may directly apply to the People's Court for enforcement.

Understand and apply

1. Selection process and guiding significance

The case was submitted to the State Intellectual Property Office by the Shanghai Intellectual Property Office. According to the "Regulations of the State Intellectual Property Office on the Guidance of Intellectual Property Administrative Enforcement Cases (Trial)", after review and selection, expert review, and case guidance working committee review, this case involves the judicial confirmation of the administrative mediation agreement for intellectual property disputes. In guiding similar cases It has reference significance in terms of management and can be used as an alternative guidance case. In March 2022, this case was reviewed and approved by the State Intellectual Property Office's executive meeting and released as the second batch of guiding cases.

This guiding case clarifies that when administrative agencies handle intellectual property infringement disputes, on the basis of ascertaining the facts, mediation can be conducted based on the willingness of both parties to mediate. The parties can apply to the People's Court to confirm the validity of the mediation agreement reached. The department that manages patent work has government credibility and a high level of professionalism. As a third party, it presides over administrative mediation work, which is conducive to promoting the parties to reach a settlement and sign a mediation agreement. However, the mediation agreement is a civil contract in nature and is not enforceable. If one party later fails to keep its promise and refuses to implement the agreement, the agreement will lose its validity, which will not only greatly waste administrative resources and damage the credibility of the administrative agency, but also increase the rights holder's rights protection costs, which is not conducive to maintaining an honest and trustworthy market. Operating environment. The judicial confirmation process gives the mediation agreement enforceability, which helps to solve the problem of difficulty in enforcing the mediation agreement. In addition, judicial confirmation of mediation agreements is subject to first instance and final review, which improves protection efficiency and strengthens the organic connection between administrative protection and judicial protection.

General Secretary Xi Jinping delivered an important speech when presiding over the 25th collective study session of the Political Bureau of the 19th CPC Central Committee, emphasizing the need to improve the connection mechanism between administrative enforcement and judicial enforcement of intellectual property rights and promote the unification of administrative enforcement standards and judicial adjudication standards. At present, Beijing, Shanghai, Fujian, Hunan, Sichuan, Shaanxi and other places have clearly established judicial confirmation systems for infringement dispute mediation agreements through local regulations; the Supreme People's Court has encouraged judicial confirmation work in many documents, such as the "About The Opinions of the People's Courts on Further Deepening the Reform of Diversified Dispute Resolution Mechanisms" clearly stipulates that for an agreement of the nature of a civil contract reached through mediation by an administrative agency, the parties may apply to the grassroots people's court or the people's tribunal where the mediation organization is located to confirm its validity.

2. Understanding and explaining the key points of the case

The key points of this guidance case are: in the process of handling patent infringement disputes, the patent management department presided over mediation and facilitated the two parties to reach a mediation agreement, and then obtained enforceability through judicial confirmation, strengthening the organic connection between administrative protection and judicial protection.

(1) The connection between administrative mediation and judicial confirmation

Administrative mediation refers to, under the auspices of administrative agencies, based on the voluntariness of both parties and based on laws, regulations and policies, through persuasion and persuasion of both parties to the dispute, to promote mutual compromise, mutual understanding, equal negotiation, and agreement to resolve relevant issues. Controversial activities. Mediation takes the parties' autonomy as the primary principle. The mediation agreement reached is of the nature of a civil contract and is legally binding on both parties, but does not have enforceable effect.

Judicial confirmation is a special procedure stipulated in the Civil Procedure Law. It is a non-litigation procedure in which the people's court reviews the mediation agreement reached outside the litigation process and gives it enforceability based on the application of both parties. Judicial confirmation is subject to first instance and final review, and the review is generally completed within thirty days from the date of filing the case.

Administrative agencies are more professional within the scope of their functions and can play a key role in resolving disputes in various professional fields. Resolving disputes through administrative procedures has the advantages of high efficiency, convenience and low cost. The connection between administrative mediation and judicial confirmation can not only give full play to the advantages of administrative procedures, but also save judicial resources and improve judicial efficiency. Moreover, since both parties voluntarily reach a mediation agreement and jointly apply to the court for confirmation, the probability of implementation is higher and the regret rate is lower, which can improve the quality and efficiency of dispute resolution and alleviate the pressure of case execution.

(2) Legal basis for the connection between administrative mediation and judicial confirmation

The "Civil Procedure Law of the People's Republic of China" revised in 2017 stipulates that when applying for judicial confirmation of a mediation agreement, both parties shall jointly submit a request to the mediation organization within thirty days from the date of the effective date of the mediation agreement in accordance with the "People's Mediation Law of the People's Republic of China" and other laws. proposed by the local people's court. It can be seen that according to the above provisions, the people's mediation agreement can be subject to the judicial confirmation system. There has been controversy over whether a mediation agreement reached through mediation by other mediation organizations can be applied for judicial confirmation by the court. According to Article 20 of the "Several Opinions on Establishing and Improving a Conflict and Dispute Resolution Mechanism Linking Litigation and Non-litigation" (Fafa [2009] No. 45), the "Supreme People's Court's Opinions on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism in People's Courts" According to the provisions of Article 31 of the Opinions (Fa Fa [2016] No. 14), agreements with the nature of civil contracts reached through mediation by administrative agencies, people's mediation organizations, commercial mediation organizations, industry mediation organizations or other organizations with mediation functions , the parties may apply to the people's court with jurisdiction to confirm its validity. People's courts in various places can accept judicial confirmation cases of administrative mediation agreements based on the above documents.

(3) The connection between administrative mediation and judicial confirmation of intellectual property disputes

General Secretary Xi Jinping presided over the 25th collective study session of the Political Bureau of the 19th CPC Central Committee on the judicial connection mechanism. The "Outline for Building a Strong Intellectual Property Nation (2021-2035)" proposes to "explore a judicial confirmation system for administrative mediation agreements in intellectual property disputes upon application by the parties." At present, some places in China have clearly established a judicial confirmation system for administrative mediation agreements for intellectual property disputes in local regulations to strengthen the coordination and connection between administration and justice, integrate conflict and dispute resolution resources, and provide efficient and low-cost dispute resolution channels.

The issuance of this guiding case provides a practical sample for the judicial confirmation system of administrative mediation agreements for intellectual property disputes: "The parties complain to the relevant departments regarding infringement disputes, and the relevant departments organize the two parties to mediate on the basis of ascertaining the facts. After the mediation is successful, a mediation The transcripts shall be organized to organize the two parties to sign a mediation agreement, and both parties shall apply for judicial confirmation to the court with jurisdiction. The court shall review it in accordance with the law, issue a civil ruling and serve it to the parties. The judicial confirmation ruling shall have enforceable effect." It is important for improving administrative law enforcement and judicial It is of great practical significance to connect mechanisms and promote the standardization and standardization of intellectual property dispute mediation work.

3. Other issues that need explanation

Administrative mediation of intellectual property disputes and people's mediation of intellectual property disputes are different forms of intellectual property dispute mediation. The core difference lies in the different mediation subjects. People's mediation of intellectual property disputes is hosted by an intellectual property people's mediation organization established in accordance with the law. To establish an intellectual property people's mediation organization, relevant social groups or other organizations must apply to the judicial administrative department. Those that meet the conditions for establishment will be included in the people's mediation organizations within the jurisdiction by the judicial administrative organs; those that do not meet the conditions for establishment can be included in the work scope of the existing people's mediation committees within the jurisdiction. Administrative mediation of intellectual property disputes is hosted by intellectual property administrative agencies or organizations with intellectual property management functions authorized by laws and regulations. Based on the application of the parties, it is an activity to resolve civil intellectual property disputes related to the performance of the department's duties in accordance with the law. It is more authoritative and More professional. According to the "Opinions on Strengthening the Mediation of Intellectual Property Disputes" issued by the State Intellectual Property Office and the Ministry of Justice on October 22, 2021, by 2025, people's mediation, administrative mediation, industry-based professional mediation, and judicial mediation will complement each other's advantages , organic connection, coordination and linkage of the large-scale mediation work pattern, the basic role of mediation in the diversified resolution of intellectual property disputes will be fully demonstrated, and the influence and credibility will be further enhanced.

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