CHINA Law and Practice Contributed by: Binxin Li, Guangzhen Shang, Yue He and Lesley Wang, LeanWill Law Firm
putes may arise around software, packaging designs and informational contents, and may carry both civil and criminal consequences. The main legal sources include the PRC Copyright Law, Implementing Regu ‑ lations and related judicial interpretations. Key issues in this sector include: • software copyright ownership and infringement; • copyright claims over pharmaceutical packaging design; and • the copyrightability of instructions for use. For example, the copyrightability of instructions for use was a contested issue in China roughly a decade ago. Under the general principle that copyright pro ‑ tects an expression of ideas and not the functional or informational elements such as technical instructions, procedures or concepts, and based on policy consid ‑ erations for China’s pharmaceutical industry, Chinese courts have generally held that the instructions for use are unlikely to qualify as copyrightable works under PRC law. Severe copyright infringement may also lead to crimi ‑ nal liability under the PRC Criminal Law (Article 217). For instance, in a 2023 criminal case involving the intentional circumvention of technical protection measures using a dongle to infringe the copyright of medical device operating software, three defendants were sentenced to imprisonment ranging from one year to three years and two months. 6.3 Trade Secrets Trade secret disputes are increasing in the life sci ‑ ences and pharma sector in China, particularly involv ‑ ing former employees and collaboration partners. The key issues include: • whether the defendant(s) had access to the trade secret; • evidence collection; • whether the defendant’s alleged misappropriated technology is identical or substantially similar to the plaintiff’s claimed trade secret; • how to calculate damages (eg, R&D investment and future market value), and whether punitive damages should be applied; and
• whether interim injunctions should be granted. The main legal sources are: • the Anti-Unfair Competition Law for civil and administrative enforcement (the primary law gov ‑
erning trade secrets); • the Criminal Law; and • judicial interpretations.
7. Appeal 7.1 Timeframe to Appeal Decision In China, the parties have the right to appeal, and do not require court approval. Reconsideration of PI Parties may apply for review against a PI ruling within five days of the receipt thereof. The court shall review the application and the PI ruling and issue its decision within ten days. During the reconsideration, the court reviews the likelihood of success, the balance of hard ‑ ships favouring the applicant, irreparable harm and public interest. No further review or appeal is avail ‑ able. It is worth noting that the application for review will not stay the execution of the PI. Appeal of Patent Infringement In patent infringement cases, a party may appeal with ‑ in 15 days after service; those who have no domes ‑ tic domicile have 30 days. Appellate courts (ie, the Supreme People’s Court) may currently hold a hearing around six months after docketing, and conclude the appeal around another six months afterwards. Dur ‑ ing the appeal, the court usually reviews the appeal grounds, including the fact findings and application of law. A party dissatisfied with the appellate judgment may apply for a retrial. If the patent is later invalidated or if the case was rejected in a final judgment, the court will, on its own motion, issue a ruling lifting the PI. The party sub ‑ ject to the PI could also apply for a release, and the court must rule to lift the measure within five days after review.
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