1. The Patent Reexamination Committee of the China National Intellectual Property Administration, Baixiang Food Co., Ltd. and Chen Chaohui applied for retrial of the administrative dispute over the invalidity of the design patent [the Supreme People's Court (2014) Zhi Xing Zi No. 4 Administrative Ruling]

[Abstract] Chen Zhaohui applied to the China National Intellectual Property Administration on October 16, 2000 for a design patent with the product name of "food packaging bag" (hereinafter referred to as the patent involved), and was authorized to publish it on May 2, 2001. The application date for the "White Elephant" trademark No. 1506193 held by White Elephant Company (hereinafter referred to as "White Elephant Trademark") was December 12, 1997, and its registration was approved on January 14, 2001. On August 4, 2009, White Elephant Company filed a request for invalidation to the Patent Reexamination Board of the China National Intellectual Property Administration (hereinafter referred to as the Patent Reexamination Board) for the patent involved, on the ground of its conflict with the prior White Elephant trademark rights. The Patent Reexamination Board decided to maintain the validity of the patent right in question on the grounds that the registration date of the white elephant trademark is not a legitimate prior right after the patent application date. The White Elephant Company is dissatisfied and has filed an administrative lawsuit. The First Intermediate people's court of Beijing revoked the invalid decision on the ground that the approval and registration date of the white elephant trademark was earlier than the authorization announcement date of the patent involved, and the white elephant trademark constituted the prior right. The Patent Reexamination Board is dissatisfied and files an appeal. The Beijing High People's Court rejected the appeal and upheld the original judgment on the ground that the application date of the white elephant trademark was earlier than the application date of the patent involved, and the trademark application right of the white elephant trademark constituted the prior right. The Patent Reexamination Board is dissatisfied and applies for a retrial to the Supreme People's Court. The Supreme People's Court has reviewed and found that the right to apply for a trademark cannot be considered as a legitimate right obtained in advance as referred to in Article 23 of the Patent Law. However, the right to apply for a trademark is of great significance in determining whether the design patent right and the registered trademark exclusive right constitute a conflict of rights. As long as the trademark application date is before the design patent application date, the exclusive right to use the registered trademark that was previously applied for can compete against the design patent right that was later applied for. After the registration of the White Elephant trademark, the implementation of the patent in question will objectively conflict with its rights. It should be determined that the exclusive right to use the White Elephant registered trademark on the earlier application date can be used to counter Chen Chaohui's design patent right, in accordance with the principle of protecting prior rights. Accordingly, the Patent Reexamination Board's application for reexamination is rejected.

[Innovative Significance] In this case, the court clarified the legal significance of the trademark application date in resolving rights conflicts. The court pointed out that as long as the trademark application date is before the patent application date and the trademark has been approved for registration and is still valid at the time of the request for invalidation of the patent, the exclusive right to use the registered trademark applied earlier can be used to oppose the design patent right applied later, and thus to determine whether it conflicts with the design patent right. This case has made a certain degree of breakthrough in the application of Article 23 of the Patent Law to determine whether the exclusive right to a registered trademark constitutes a legitimate prior right, which requires the approval registration date as the time node. It has a certain guiding value for the trial of cases involving rights conflicts.

2. Administrative dispute on invalidation of invention patent right between (Switzerland) Elikon Asia Co., Ltd. and Patent Reexamination Board of the China National Intellectual Property Administration of the China, Liu Xiayang, etc. [Administrative Judgment of the Supreme People's Court (2014) KTZ No. 11, 12, 13]

[Summary of Case] Ericon Company is the holder of the invention patent titled "Bracket for Horizontal Transmission of Motor Vehicles in Automatic Mechanical Parking Lot" (i.e. the patent in this case). The patent in this case has 15 claims, Among them, independent claim 1 is: "A bracket that walks on its own on the wheel (3),... one part also has a pair of devices (58), which can symmetrically move perpendicular to the longitudinal axis of the bracket and be constructed to support, center, stop moving, and lift two wheels of one axle of the motor vehicle, while the other part has a pair of devices (59), and the device (59) Two wheels that can move symmetrically perpendicular to the longitudinal axis of the bracket and are constructed to support, center, stop moving, and lift the second axis of the motor vehicle For this patent, Liu Xiayang and Yifeng have made invalid requests for three times. One of the reasons is that claims 1-15 lack necessary technical features and are not in conformity with the provisions of paragraph 2 of Article Twenty-One Demands of the Rules for the Implementation of the Patent Law. The Patent Reexamination Board has decided to determine that claim 1 and related dependent claims lack necessary technical features and declare them invalid, but at the same time, it has determined that the technical solution of claim 4 and its dependent claims complies with the provisions of Article 26 (4) of the Patent Law. Elecon Company is not satisfied and has filed an administrative lawsuit. The First Intermediate people's court of Beijing Municipality and the Beijing High People's Court successively rejected their claims and appeals. Elicon Company is dissatisfied and applies for a retrial to the Supreme People's Court. The Supreme People's Court brought up the case and held that an independent claim lacks the necessary technical features and is not in conformity with Paragraph 2 of Article Twenty-One Demands of the Rules for the Implementation of the Patent Law, and generally cannot be supported by the description, and is not in conformity with Paragraph 4 of Article 26 of the Patent Law. The invalid decision is based on the determination that the claim lacks necessary technical features and is supported by the specification, resulting in a legal error. Based on this judgment, the examination decision and first and second instance judgments of the Patent Reexamination Board shall be revoked, and the Patent Reexamination Board shall be ordered to make a new examination decision.

[Innovative significance] This case has made a more in-depth and comprehensive exposition on the issue of "necessary technical features" in Paragraph 2 of Article Twenty-One Demands of the Rules for the Implementation of the Patent Law, especially on how to understand the relationship between "lack of necessary technical features" and "whether the claims are based on the description", which has certain guiding significance for the application of Paragraph 2 of Article Twenty-One Demands of the Rules for the Implementation of the Patent Law. The court pointed out that Paragraph 4 of Article 26 of the Patent Law and Paragraph 2 of Rule Twenty-One Demands of the Rules for the Implementation of the Patent Law both involve the correspondence between the claims and the description, but compared with Paragraph 2 of Rule Twenty-One Demands of the Rules for the Implementation of the Patent Law, Paragraph 4 of Article 26 of the Patent Law has a broader scope of application, which applies to both independent claims and dependent claims, It also applies to situations where the technical features recorded in the claims are too broad to be supported by the specification, as well as situations where the necessary technical features are missing, resulting in the overall inability of the claims to be supported by the specification. Therefore, in the case that the independent claim lacks necessary technical features and is not in conformity with Paragraph 2 of Article Twenty-One Demands of the Rules for the Implementation of the Patent Law, it cannot generally be supported by the description and is not in conformity with Paragraph 4 of Article 26 of the Patent Law.

3. Application for retrial of the dispute between Sun Junyi and Zheng Ning over infringement of utility model patent rights [Supreme People's Court (2014) Minshenzi No. 1036 Civil Ruling]

Summary of Case: Sun Junyi is the holder of a utility model patent named "Anti adhesion Automatic Exhaust Valve" (hereinafter referred to as the patent in question). On June 28, 2013, Changchun Kuancheng Boiler Exhaust Valve Factory issued a notice letter to individual business owner Zheng Ning, stating that the "Shengyi" brand fully automatic exhaust valve sold by Zheng Ning infringed on the patent right of its "Zhongquan" brand exhaust valve (patent number ZL200320112523.2, patent holder Sun Junyi), with the seal of "Changchun Kuancheng Boiler Exhaust Valve Factory Anti Counterfeiting Office" and the seal of the patent holder Sun Junyi attached at the signature, along with the communication address Postal code, contact person, and phone number. In July 2013, Sun Junyi purchased the sued "Shengyi" brand exhaust valve from Zheng Ning and filed a lawsuit on the grounds that Zheng Ning had infringed on his utility model patent rights. The Intermediate people's court of Shenyang City, Liaoning Province held in the first instance that the technical features of the sued infringing products were equivalent to the technical solution of the patent in this case, and fell within the protection scope of the patent in this case. The notification letter sent by Sun Junyi to Zheng Ning did not include the patent certificate and other necessary documents, which was not enough to make Zheng Ning realize that the products he sold were infringing. Considering that Zheng Ning, as a seller, has provided a legitimate source of infringing products and is subjectively innocent, he can be exempted from compensation liability in accordance with the law. According to this judgment, Sun Junyi's lawsuit request was rejected. Sun Junyi was dissatisfied and appealed. The second instance decision of the High people's court of Liaoning Province rejected the appeal and upheld the original judgment. Sun Junyi refused and applied to the Supreme People's Court for a retrial. The Supreme People's Court ordered the High people's court of Liaoning Province to retry the case on December 13, 2014. The Supreme People's Court holds that a comprehensive judgment should be made based on the facts of the case to determine whether the seller is aware that they are selling patent infringing products. If the seller has previously sold a patented product, or if the price of the accused infringing product is unreasonably lower than the market price of the patented product, it can be used as the factual basis for determining that the seller knows that they are selling a patented infringing product. If none of the above situations exist and only the right holder has issued an infringement warning letter to the seller, further examination of the specific content of the warning letter is necessary. If the warning letter records or contains the basic information of the patent right (patent number, patent name, copy of patent certificate, etc.) and the accused infringing product, infringement comparison results, and contact information, etc., and the seller has also received the warning letter, in principle, it should be presumed that they know that they are selling the patented infringing product.

[Innovative Significance] In order to maintain normal market operation order and encourage the crackdown on the source of infringement, Article 70 of the Patent Law provides for the seller's legitimate source defense, that is, in the case where the seller of the infringing product has no subjective fault and can provide the legitimate source of the product, compensation liability can be exempted. However, in judicial practice, there are difficulties in determining whether the seller has subjective fault. The widespread use of infringement warning letters in patent infringement disputes provides a new solution to the dilemma of determining the subjective fault of sellers. In this case, based on the fact that the right holder has already issued a clear infringement warning letter to the seller, which records the basic information of the involved patent and the accused infringing product, infringement comparison results, and contact information, and the seller has actually received the warning letter, it is presumed that the seller knows that the product they are selling is a patent infringing product. The trial of this case has standardized the standards for proving the subjective fault of the seller by the rights holder, and also provided judicial guidance for the people's court to review and judge the evidence of the seller's subjective fault.

4. Apple and the Patent Reexamination Board of the China National Intellectual Property Administration of the China rejected the appeal of administrative dispute over reexamination of design patent applications [Beijing High People's Court (2014) Gao Xing (Zhi) Zhong Zi No. 2815 Administrative Judgment]

[Summary of Case] On July 26, 2010, Apple filed an application for a design patent with the China National Intellectual Property Administration of the China entitled "Portable display device (with graphical user interface)" (hereinafter referred to as the application involved). The original examination department of the China National Intellectual Property Administration rejected the application on the ground that it was "the pattern displayed after the product was powered on" as specified in the Patent Examination Guide, and it did not belong to the object for which the design patent right was granted. Apple is not satisfied and has submitted a request for reexamination to the Patent Reexamination Board. The Patent Reexamination Board upheld the rejection decision. Apple is dissatisfied and has filed an administrative lawsuit. The First Intermediate people's court of Beijing held that, although the application involved in the case also includes the graphical user interface that can be displayed only when the product is powered on, it is still the design of the portable display device in terms of the overall appearance of the product, can also meet the requirements of the design patent in terms of industrial application and aesthetic feeling, and can become the object of protection of the design patent right in China. Based on this judgment, the Patent Reexamination Board's reexamination decision was revoked. The Patent Reexamination Board was dissatisfied and filed an appeal. The second instance judgment of the Beijing High People's Court rejected the appeal and upheld the original judgment.

[Innovative Significance] This case is a patent authorization administrative case involving whether a new type of object, the graphical user interface, can be used as the object of a design patent application. In this case, the court clarified the legal basis for a graphical user interface to become the authorized object of a design, as well as the conditions that need to be met for such a design application. The court pointed out that although the "Patent Examination Guidelines" stipulate that "the pattern displayed after the product is powered on belongs to the situation where the design patent right is not granted", whether the graphical user interface can be the protected object of the design patent should still be based on the provisions of Article 2 (4) of the Patent Law. When filing a design patent application using a graphical user interface, in order to accurately determine the content of the design, the applicant should indicate in appropriate ways in pictures, photos, or brief explanations which parts belong to patterns that can only be displayed after being powered on. This case further clarifies the trial approach for future administrative cases related to graphical user interface authorization and patent confirmation.

5. The appeal case of Huaihua Zhengzheng Pharmaceutical Co., Ltd. and Hunan Fangsheng Pharmaceutical Co., Ltd. confirming the non infringement of patent rights [Hunan High people's court (2014) XGFMSZZ No. 51 civil judgment]

[Abstract] Huaihua Qiaoji Pharmaceutical Co., Ltd. (hereinafter referred to as Qiaoji) filed an application for an invention patent named "a drug Jingangteng pellets and its preparation method" with the China National Intellectual Property Administration on July 1, 2005, and was authorized on June 17, 2009, with the patent number ZL200510080293. X. Hunan Fangsheng Pharmaceutical Co., Ltd. (hereinafter referred to as Fangsheng Company) submitted a new drug application to the Hunan Provincial Food and Drug Administration (hereinafter referred to as Hunan Provincial Drug Administration) for the tablet drug named "Jingangteng Dispersible Tablets". The Hunan Provincial Drug Administration accepted the application on October 19, 2005. On December 25, 2008, the Drug Evaluation Center of the State Food and Drug Administration (hereinafter referred to as the Evaluation Center) sent a letter to Fangsheng, saying that during the registration process of the company's "Jingangteng dispersible tablets", the company just reported to the Evaluation Center that the declared drug involved patent issues. The evaluation center notified Fangsheng Company to provide a response opinion on this matter. On January 9, 2009, Fangsheng Company issued a response to the above questions to the evaluation center, stating that the drug registration application for "Jingangteng Dispersible Tablets" did not conflict with the patent rights of Qiqiong Company. On September 13, 2011, Fangsheng Company sent a letter to Qiaoqi Company, urging it to exercise its right of appeal or withdraw its objection from the State Administration for Drug Administration. Later, the pharmaceutical company neither filed a lawsuit nor withdrew its objection. Fangsheng Company filed a lawsuit to the Intermediate people's court of Changsha City, Hunan Province to confirm that the patent right was not infringed. The first instance court ruled to confirm that Fangsheng Company's "Jingangteng Dispersible Tablets" did not infringe on Qiaoqi Company's patent rights. Coincidentally, the company is dissatisfied and has filed an appeal. The second instance judgment of the High people's court of Hunan Province rejected the appeal and upheld the original judgment.

The issuance of an infringement warning letter by the right holder is one of the behavioral requirements for confirming the establishment of a non infringement lawsuit. In judicial practice, warning letters in the form of Demand letter are usually sent to producers and operators suspected of infringement. The significance of this case lies in expanding the form and scope of the infringement warning letter, that is, the infringement warning in this case is reflected in the right objection raised by the company to the relevant national departments in response to Fangsheng Company's new drug application. Although it is different from the infringement warning relationship directly established between the rights holder and the suspected infringer, the objection raised by the company has directly affected the production and operation activities of Fangsheng Company, thus essentially playing the same role and consequences as sending a warning letter directly to Fangsheng Company. Considering that more and more parties have resorted to legal forms in market operations, The act of delaying or interfering with the normal production and business activities of others, from the perspective of stabilizing legal relations and restoring market order as soon as possible, the court's flexible handling and interpretation of the form and object of the infringement warning letter in this case is in line with the legislative essence of confirming non infringement litigation in the legal setting.

6. Dongyang Shangjiang Ham Factory and Zhejiang Xuefang Industry and Trade Co., Ltd. appeal case of trademark infringement dispute [Zhejiang High people's court (2013) Zhejiang Zhizhong Zi No. 301 Civil Judgment]

[Summary] The "Xuefang Jiang" ham was originally produced in the Ming Dynasty and is a China Time-honored Brand in China. Dongyang Shangjiang Ham Factory (hereinafter referred to as Shangjiang Ham Factory) is the obligee of the trademark "Xuefangjiang". In 2007, Zhejiang Xuefang Industry and Trade Co., Ltd. (hereinafter referred to as Xuefang Industry and Trade Company) obtained the exclusive license to use the trademark, with a license period ending in 2028. Xuefang Industry and Trade Company paid license fees of 360000 yuan each in 2007 and 2009. On November 2, 2011, Shangjiang Ham Factory requested the termination of the contract on the grounds that Xuefang Industry and Trade Company had overdue payment of the license fee. Xuefang Industry and Trade Company remitted 360000 yuan in licensing fees to Shangjiang Ham Factory the next day. Afterwards, Shangjiang Ham Factory purchased ham with both the "Xuefangjiang" and "Wuning Mansion" trademarks at the "Xuefangjiang" store multiple times. Shangjiang Ham Factory filed a lawsuit to the Intermediate people's court of Jinhua City, Zhejiang Province on the ground that Xuefang Industry and Trade Company infringed its trademark right of "Xuefang Jiang". The first instance court determined that the actions of Xuefang Industry and Trade Company constituted trademark infringement, and therefore ordered it to stop using the "Xuefang Jiang" trademark and compensate 180000 yuan for economic losses. Shangjiang Ham Factory and Xuefang Industry and Trade Company refused to accept the judgment of first instance and appealed to the High people's court of Zhejiang Province. The second instance court held that the breach of contract by Xuefang Industry and Trade Company was minor, and Shangjiang Ham Factory did not fulfill its contractual obligations and had no right to unilaterally terminate the contract. However, the simultaneous use of the "Wuning Mansion" and "Xuefang Jiang" trademarks by Xuefang Industry and Trade Company on ham products constitutes trademark infringement. Therefore, the verdict was changed to immediately cease the use of the "Snow Boat Jiang" and "Wu Ning Fu" series trademarks on ham products by Snow Boat Industry and Trade Company, and to compensate 150000 yuan for economic losses.

[Innovative significance] There is no clear legal basis in trademark law whether the act of simultaneously labeling the licensed trademark and the user's own trademark on the same product constitutes infringement. In this case, the court starts from the openness of the expression of "other damages" as stipulated in Article 52 of the Trademark Law, combined with the original meaning that the purpose of the trademark licensing system is still to ensure the uniqueness of the source of the goods, considering the popularity of the licensed trademark, and from the perspective of the objective consequence that Xuefang Industry and Trade Company's simultaneous use of two trademarks will lead to the occurrence of two sources of the same goods, It is appropriate to infer that consumers will recognize the identity of the origin relationship between the "Xuefangjiang" and "Wuningfu" trademarks, thereby affecting the normal functioning of the "Xuefangjiang" trademark identification function, and draw a conclusion that constitutes trademark infringement. In addition, the second instance court also emphasized the continued impact of this use behavior on the end of the trademark licensing relationship, that is, it will cause Xuefang Industry and Trade Company's own and unknown "Wuning Mansion" trademark to obtain and attach to the already well-known "Xuefang Jiang" trademark goodwill in a disguised form. The trial of this case has reference value in regulating the relationship between trademark licensing and clarifying the boundary between licensed use and infringement.

7. The appeal case of Shenzhen Monpin Little Sheep Group Catering Chain Management Co., Ltd. and Inner Mongolia Little Sheep Group Catering Chain Co., Ltd. for infringement of trademark rights and Unfair competition [Guangdong High people's court (2014) YGFMSZZ No. 27 Civil Judgment]

[Abstract] Little Sheep Group Catering Chain Co., Ltd. of Inner Mongolia (hereinafter referred to as Little Sheep Group Company) was established on September 13, 1999. It owns the trademark "Little Sheep Group" (No. 3043421, 3092512, 3420327, 3878260, 4098504) in words or pictures, which is approved to be used in the service of restaurants, restaurants (museums) and other services of category 43. The trademark 3043421 was recognized as a well-known trademark in restaurants and hotel services on November 12, 2004. Shenzhen Mongpin Little Sheep Group Catering Chain Management Co., Ltd. (hereinafter referred to as Mongpin) uses the logo of "Yipin Little Sheep Group" on the store signboard, the waiter's badge and the order menu; "Little Sheep Group on Monday" and other signs are used on the store signs; Use the commercial logo containing "Little Sheep Group" on tableware and hot pot Induction cooking; At the same time, on the website with the domain name of www.zypxfy.com, in addition to the use of the above logo, it is also noted that the copyright is owned by Shenzhen Yipin Little Sheep Group Catering Chain Group,... the official website of Yipin Little Sheep Group. The website provides the registration form of "Yipin Little Sheep Group Catering Chain" and introduces the franchise procedures of "Yipin Little Sheep Group" franchise chain. Little Sheep Group Company filed a lawsuit to the Intermediate people's court of Shenzhen City, Guangdong Province, on the grounds that the above-mentioned acts of Mongpin Company constituted infringement of trademark rights and Unfair competition. The court of first instance found that the right of first use claim of Mongpin Company could not be established, and the commercial logo and enterprise name used by Mongpin Company infringed the exclusive right of registered trademark and enterprise name of Little Sheep Group Company. Therefore, Mongpin Company immediately stopped the infringement and compensated Little Sheep Group Company with 900000 yuan of economic losses and 100000 yuan of reasonable expenses. Monday's product company is dissatisfied and has filed an appeal. The second instance judgment of the High people's court of Guangdong Province rejected the appeal and upheld the original judgment.

[Innovative Significance] The revised Article 59, Paragraph 3 of the Trademark Law has added provisions on the right of first use of trademarks, which to some extent confirms the legal status and corresponding rights and interests of unregistered trademarks that were previously used, and also balances the interests between registered trademark owners and those who previously used unregistered trademarks. In the legislative context of the amendment of the Trademark Law, this case explores the application of rules regarding the right of first use of trademarks, especially the definition of the "original scope" in the defense of the right of first use of trademarks, which has not yet been determined in theory and judicial practice. Based on this, it further explains the ranking relationship and balance of interests between the system of first use rights and the registered trademark system, We have actively and beneficially explored the trial of cases involving the defense of prior use rights after the implementation of the new trademark law.

8. The appeal case of the dispute between Hangzhou Polymerization Network Technology Co., Ltd., China Mobile Group Zhejiang Co., Ltd., and Zhejiang Rongchuang Information Industry Co., Ltd. over infringement of computer software copyright [Zhejiang High people's court (2013) Zhejiang Zhizhong Zi No. 289 Civil Judgment]

Summary of Case: The Zhejiang Provincial Health Information Center (hereinafter referred to as the Information Center), on behalf of the Zhejiang Provincial Department of Health (hereinafter referred to as the Department of Health), is leading the construction of the Zhejiang Provincial Hospital Appointment Diagnosis and Treatment Service System. The system software is managed by China Mobile Communications Group Zhejiang Co., Ltd. (hereinafter referred to as Zhejiang Mobile Company) and implemented by its wholly-owned subsidiary Zhejiang Rongchuang Information Industry Co., Ltd. (hereinafter referred to as Rongchuang Company), Rongchuang Company entrusts Hangzhou Juju Network Technology Co., Ltd. (hereinafter referred to as Juju Company) to carry out software development. In September 2010, the system software developed by Aggregation Company was launched for trial operation. At the end of September 2011, due to a dispute over the cooperation between Aggregation Company, Zhejiang Mobile Company, and Rongchuang Company, the software developed by Aggregation Company was discontinued after October 9, 2011. Rongchuang Company has redeveloped the system software using part of the source code of the software developed by Aggregation Company. Aggregation Company filed a lawsuit to the Intermediate people's court of Hangzhou, Zhejiang Province on the grounds that Zhejiang Mobile, Rongchuang, the Department of Health and the Information Center copied, plagiarized and used the software involved without their permission, and infringed their software copyright. The first instance court held that the copyright of the software in question is owned by Aggregation Company, but Rongchuang Company, as the commissioning party, has the right to use the work for free within the specific purpose of the commissioned creation. Therefore, the judgment rejected the lawsuit request of the Aggregation Company. The polymerization company refused and appealed to the High people's court of Zhejiang Province. The court of second instance held that Zhejiang Mobile Company and Rongchuang Company can only continue to use within the original purpose of the commissioned creation, but cannot utilize the software works that Aggregation Company enjoys copyright as technical achievements. The behavior of Rongchuang Company constitutes infringement, but due to the public welfare nature of the software involved, it is not appropriate to stop using it. The first instance judgment was revoked, and Zhejiang Mobile Company and Rongchuang Company jointly compensated Juju Company with 200000 yuan.

[Innovative Significance] This case takes the perspective of software copyright cases, interpreting and clarifying the scope of rights between the principal and the trustee in the commissioned creative contract relationship. The court pointed out that in the case where the copyright belongs to the trustee, if both parties have not agreed on the scope of use of the work, the principal can use the software work for free within the specific purpose of the commissioned creation. However, based on the particularity of the software work, the specific usage method of the client should only include necessary modifications made through the normal use of various functions of the software through the software client and improvements based on the usage environment, function, and purpose. However, the principal cannot utilize the software work as a technical achievement. If the principal modifies the program source code to redevelop and utilize the software, it will directly infringe on the copyright of the principal. The trial of this case has certain reference significance for reasonably dividing the rights and obligations of the principal and trustee in software copyright cases, as well as clarifying the standards for determining infringement behavior.

9. McGregor Kunci (Tianjin) Co., Ltd. v. Xia Mou and Suzhou Ruitai Nu metal Co., Ltd. on the appeal of infringement of technical secrets [Jiangsu High People's Court (2013) Su Zhimin Zhong Zi No. 159 Civil Judgment]

[Summary of Case] McGonagall Magnet International Company (hereinafter referred to as McGonagall Magnet Company) mastered two key technologies for the production of neodymium iron boron magnetic powder using the rapid quenching method - the throwing pulley technology and the nozzle technology. Later, McGonagall Magnet (Tianjin) Co., Ltd. (hereinafter referred to as McGonagall Magnet Tianjin Company) was authorized to use the aforementioned technology through ordinary licensing, and it was authorized to sue in its own name. Suzhou Ruitai Nu metal Co., Ltd. (hereinafter referred to as Ruitai Company) is also engaged in the production and sales of the same magnetic powder. Mr. Zhang and Mr. Xia are the founders of the company. Among them, Zhang used to be an employee of McGonagall Magnetic Company and McGonagall Magnetic Tianjin Company, mastering the technology of the throwing pulley and nozzle involved in the case; Xia is a supplier of production equipment for Ruitai Company. In June 2009, McGonagall Magnetic Company reported to the public security organs on the grounds that Ruitai Company and Zhang had infringed on their trade secrets. During the investigation, the public security organs questioned Xia, seized the production equipment of Ruitai Company, retrieved processing and manufacturing drawings, and submitted the corresponding materials to the appraisal agency for appraisal. After appraisal, it was found that the relevant technical information claimed by McGonagall Magnetic Company is not known to the public. The corresponding technical information in the production equipment of Ruitai Company is essentially the same as the technical information claimed by McGonagall Magnetic Company. Currently, the criminal case has not been resolved. McGregor Kunci Tianjin filed a lawsuit to the Intermediate people's court of Suzhou City, Jiangsu Province, on the basis of the main evidence formed during the investigation of the public security organ and the infringement of its technical secrets by Xiamou and Ruitai. The first instance court held that the actions of Xia and Ruitai Company infringed on the trade secrets of McGonagall Tianjin Company, and ruled that Xia and Ruitai Company immediately ceased the infringement and jointly compensated McGonagall Tianjin Company for economic losses and reasonable expenses totaling over 11.5 million yuan. Xia Mou and Ruitai Company refused and appealed to Jiangsu High People's Court. The second instance court rejected the appeal and upheld the original judgment.

[Innovative significance] This case is a commercial secret infringement case that intersects civil and criminal law. The differences in evidence rules and standards of proof in civil criminal intellectual property cases have always troubled the trial of such cases. The court's handling of several controversial issues in this case, as well as the relevant trial ideas, have a strong reference and demonstration effect for the trial of similar cases: for the flaws in the identification procedure in the Criminal investigation stage, the court adopted the way of supplementary investigation and questioning the identification experts, overcoming the obstacles in the identification of technical facts; Regarding the relationship between civil tort liability and criminal liability, the court clearly pointed out that due to differences in proof standards, judicial determination of civil tort does not necessarily serve as the basis for conviction and sentencing in criminal cases.

10. Chang Chun-hsiung's Crime of Infringement of Copyright [Shanghai Putuo District People's Court (2013) PX (Zhi) Chu Zi No. 11 Criminal Judgment]

【 Summary 】 At the end of 2009, the defendant Chang Chun-hsiung set up the website www.1000ys.cc (the website name is "1000 Movie"). Later, Chang Chun-hsiung, without the permission of the copyright owner, linked to Haku Resources Network through the website management background to obtain the Torrent file index address of film and television works, and provided website users with network services to browse and watch film and television works by providing users with and forcing the use of QVOD playing software. In order to improve the popularity of the website and the number of hits of the linked film and television works, the defendant Chang Chun-hsiung recommended film and television works to users by setting up directories, indexes, content profiles, ranking lists, etc. At the same time, the defendant Chang Chun-hsiung joined the "Baidu Advertising Alliance" and obtained advertising revenue. After identification, 941 of the film and television works linked to the website have the same content as the copyrighted film and television works certified by relevant copyright agencies in China, the United States, South Korea, Japan, and other countries. The People's Court of Putuo District, Shanghai, after hearing the case, held that the defendant Chang Chun-hsiung distributed 941 film and television works (to the public through the information network) for the purpose of making profits, without the permission of the copyright owner. The circumstances were serious, and his act constituted a crime of copyright infringement. According to law, the defendant Chang Chun-hsiung was sentenced to commit a crime of copyright infringement, and was sentenced to one year and three months of fixed-term imprisonment, one year and three months of probation, and a fine of 30000 yuan; The illegal gains shall be recovered in accordance with the law; The tools of crime seized in the case shall be confiscated in accordance with the law. After the judgment, the defendant Chang Chun-hsiung did not file an appeal, and the public prosecution organ did not file a protest. The judgment has become legally effective.

The defendant in this case did not engage in the act of providing works, but rather in the act of providing online services. In current criminal justice practice, whether it is necessary or not to elevate such assisted indirect infringement behavior to a criminal offense, that is, whether the act of "spreading information to the public through the internet" in judicial interpretation includes the provision of online services; If convicted, the network service provider should be identified as a principal offender or an accomplice; There are still controversies in judicial practice regarding how to master the examination standards for the constituent elements of a crime such as "without the permission of the copyright owner", and how to handle the evidence recognition and proof standards for the connection between civil and criminal law, if it is a principal offender. This case focuses on the new type of crime of providing online services, and conducts in-depth research and exploration from the perspectives of the path of incrimination, the examination of criminal constituent elements, and the standards of evidence examination, which has certain innovative significance.