II.Administrative Intellectual Property Cases

（I）Patent Authorization and Determination Cases

1.In the higher-level retrial of the case of invalidation of invention patent，Jining Pressureless Boiler Factory v.the Patent Reexamination Board（PRB）of the State Intellectual Property Office and Shu Xuezhang，the third party，the SPC（2007）XTZ No.4 Administrative Judgment clarified the principle of prohibiting repetitive authorization in the Patent Law and the legitimacy of relevant administrative operation，and also clarified the connotation of the concept of‘same invention and creation’of the Patent Law.The focus of this case was whether the relevant rule of administrative operation which allows the same applicant to apply for utility model patent and invention patent for the same invention and creation established by Article 6 of the Examination Guidelines Communique published on September 28,1995 by the Patent Office，conforms to the principle of prohibiting repetitive authorization in the Patent Law，and it also brought up the issue concerning the validity of thousands of patents granted on this basis by the Patent Office of the People's Republic of China in the past.The SPC held that，the same invention and creation mentioned in the Patent Law refers to the patent or patent application with the same protection scope，and with regard to the judgment method，it is only required to compare the protection contents of each application，and those two patents involved in the case did not pertain to the same invention and creation；the principle of prohibiting repetitive authorization in the Patent Law refers to that the same invention and creation cannot have two or more valid patent rights at the same time，rather than that patent right can be granted to the same invention and creation only once，thus the relevant administrative operation did not contravene the legislative spirit of prohibitingrepetitiveauthorizationineffectivethenand currently.

2.In the case of application for retrial of the dispute on the invalidation of design patent，the PRB of the State Intellectual Property Office v.Falmer Investment Ltd.，Foshan Shunde Xinda Dyeing&Finishing Machinery Co.，Ltd.，the SPC（2008）XTZ No.4，5，6，7，8 Administrative Judgment clarified：Article 13.1 of the Detailed Rules for Implementation of the Patent Law prohibit repetitive authorization，with regard to design，in order to prevent conflicts among design patent rights，it shall be granted with one patent right in accordance with aforementioned administrative regulations，regardless of same or similar design or same applicant；the patent if claimed invalid means it never exists，and shall not be taken as the comparison file for judgment of repetitive authorization；if designs of every unit are the same，and only differ in the increase or decrease of the quantity of units，they shall be deemed as similar design.

3.In the case of invalidation of utility model patent，Rugao A.J.Q Textile Machinery Co.，Ltd.v.the PRB of the State Intellectual Property Office and Wang Yushan，the third party，the SPC（2007）XTZ No.3 Administrative Judgment clarified two important issues regarding whether or not enterprise standard filing constitutes publicity in the sense of the Patent Law，and whether court can exercise judicial change right in patent verification administrative cases.The SPC held that filing of enterprise standard does not necessarily mean that the detailed content of standard shall be released to the public，the public could not access or obtain the information at will either，and enterprise standard does not constitute publicity in the sense of the Patent Law as a result of such filing；under the framework of the current Administrative Procedure Law，the court's direct declaratory judgment on the validity of the patent right involved in the case in the main body of verdict does not have adequate legal basis.

（II）Trademark Authorization and Determination Cases

4.In the case of retrial application concerning trademark administrative dispute，South-west Pharmacy Co.，Ltd.v.The Trademark Review and Adjudication Board（TRAB）of State Administration for Industry and Commerce，Bayer Consumer Health Co.，Ltd.，the SPC（2007）XJZ No.111-1 Notification on Dismissal of Retrial held that genetic name includes legal genetic name and conventional genetic name，and the name listed in local drug standards shall be deemed as genetic name in principle，but it shall not be deemed as legal common name after the revision of the national drug standards；the standards for determining a genetic name shall be whether it is a name conventionally and extensively used by operators in the same industry to designate certain kind of commodity；with regard to the timing of genetic name judgment，it shall be decided based on the facts and conditions in the process of reviewing.

5.In the case of retrial application concerning trademark administrative dispute，Changzhou Chenglian Power Source Manufacturing Co.，Ltd.v.the TRAB of the State Administration for Industry and Commerce，Changzhou Chuanglian Power Source Co.，Ltd.，the SPC（2006）XJZ No.118-1 Notification on Dismissal of Retrial clarified the parallel situation of‘registration by deception means or by other improper means’in Item 1，Article 41 of the Trademark Law，it involved the absolute ground of revoking trademark registration，and in the dispute over registered trademark involving prior rights，the‘by other improper means’in that Item shall not apply to the cases of revoking trademark dispute involving private rights，where the provisions of Item 2，3 of Article 41 of the Trademark Law shall apply.In the meantime，the Notification further clarified that，to solve problems concerning violation of the principle of honesty and credibility，preemptive registration of a prior trademark，or other act of infringing other People's prior rights，and to prevent improper competition acts，it requires correct understanding and application of the provisions of Article 31 of the Trademark Law；Article 31 of the Trademark Law specified three conditions for protection of unregistered trademarks，i.e.，prior use，certain influence，and preemptive registration via improper means，among that‘certain influence’and‘improper means’are flexible；the requirement for certain influence of a trademark shall not be too high，and registrant's awareness or malicious intention should be taken into consideration.

6.In the serial cases of retrial application concerning trademark administrative dispute between Futabasha Publishers Ltd.v.the TRAB of the State Administration for Industry and Commerce，Shanghai Enjia Economic&Trade Development Co.，Ltd.，the SPC（2007）MSJZ No.25-1，26-1，27-1，28-1，29-1，30-1，31-1，32-1，33-1 Notifications on Dismissal of Retrial held that，according to the provisions of Article 31 of the Trademark Law，the application for revoking the registered trademark on the ground that the registration of the disputed trademark has infringed the prior copyright shall be made within 5 years since the registration date of the registered trademark；with regard to the five years duration specified in the Trademark Law，the decision that such period shall be starting from the date of effective date of the Trademark Law，i.e.December 1,2001，lacks legal basis.

7.In the case of retrial application concerning trademark administrative dispute，Yunnan Dihon Pharmaceutical Group Co.，Ltd.v.Shantou Kangwang Fine Chemical Industry Co.，Ltd.，the TRAB of the State Administration for Industry and Commerce，the SPC（2007）XJZ No.184-1 Notification on Dismissal of Retrial clarified the connotation of‘use’stipulated in Item 4，Article 44 of the Trademark Law，stating that such‘use’shall refer to open，real and legal use of the trademark in commercial activities，and indicating that the legal basis to determine whether the use of trademark is legal or not shall not be limited to the Trademark Law and relevant regulations.For operator's use of trademark in operations in contravention of the mandatory and prohibitive provisions of laws and regulations，it cannot be deemed as the use stipulated in the Trademark Law；the solution of ordered rectification within a time limit as specified in Article 44 of the Trademark Law shall not apply to the act of discontinued using for 3 consecutive years stipulated in Item 4；after another person submits an application for revoking the registered trademark to the Trademark Board，if the registrant cannot provide evidence of use or the evidence is invalid，and there is no justified cause for such disuse，the registered trademark shall be revoked.[3]

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[1]Since July 11,2009，the IP cases over authorization and affirmation of patent and trademark have been allocated to the IP Division of the SPC for trial.

[2]Revised on October 28,2007，enforced on April 1,2008.

[3]Such understanding is based on the facts of this case.Due to the situation of the use of trademark is complicated，this issue needs to be researched in the future.The SPC will clarify its opinion about this problem when the time is right.