CHINA Law and Practice Contributed by: Hans She, Muran Sun, Andy Zhu and Ray Cao, Fangda Partners
Product labels, instructions for use, research articles or reports, software programs and other objects in the life sciences and pharma sector, originally created, may be protected as works under the PRC’s Copyright Law; the scope of protection is limited to expressions and will not extend to any idea, procedure, function, process, method of operation, concept or discovery. The main sources of law include: • the PRC’s Copyright Law; • administrative regulations, such as the Regu - lations for the Protection of Computer Soft - ware and the Regulations for the Implementa - tion of the Copyright Law; and • judicial interpretations, such as the Interpreta - tion of the Supreme People’s Court Concern - ing the Application of Laws in the Trial of Civil Disputes Over Copyright. 6.3 Trade Secrets Trade secrets disputes are common in the life sciences and pharma sector in China. Common issues with respect to trade secrets disputes include, without limitation: • whether the information claimed by the plain - tiff is not known to the public, well protected through reasonable confidential measures and has commercial value, and thus meets the threshold of trade secret protection; • whether the defendant has access to the plaintiff’s trade secret; • whether the technology/information used by the defendant is the same as or substantially similar to the plaintiff’s trade secret; and • how to determine and calculate the compen - sation amount.
Moreover, as the infringer’s disclosure activities may cause the trade secret to become open to the public and to no longer be protectable, it is not uncommon for the plaintiff to seek interim injunction from the court. The main sources of law include: • the PRC’s Unfair Competition Law; and • judicial interpretations such as the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases Involving Infringements Upon Trade Secrets. 7. Appeal 7.1 Timeframe to Appeal Decision Appeal Regarding Preliminary Injunction In China, the party affected by the preliminary injunction can apply to the same court that issued the injunction for reconsideration, which is of the party’s right. The court is obligated to render a reconsideration decision within ten days of receiving a petition for reconsideration. Throughout the reconsideration, the preliminary injunction order maintains its full force and effect. Appeals Regarding Patent Infringement Cases According to the PRC’s Civil Procedure Law, a party can appeal a first-instance judgment with - in 15 days of receiving the written judgment. If a party resides outside the PRC, it can file an appeal against a judgment or ruling of a first- instance court within 30 days of receiving the written judgment or ruling. During the appeal process, the second-instance court typically conducts a hearing session to hear the case. If, after reviewing the case files,
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