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Ming Chen and Xiaohai Liu

Bad faith trademark filings are a serious problem in China. During the fourth revision of the Chinese Trademark Law in 2019, bad faith filings without the intention to use the trademark was added as an absolute ground, with the aim that the Chinese Trademark Law can cope with the bad faith filings problem more effectively. Nevertheless, compared with the EU trademark system, the bad faith filing in the Chinese Trademark Law is not an absolute autonomous ground. Different kinds of bad faith filings are regulated by different clauses respectively. Some trademarks filed in bad faith can only be dealt with by relative grounds and cannot be invalidated after five years of their registrations. In order to deter malicious registration, bad faith filings per se should be introduced into the Chinese Trademark Law as an autonomous absolute ground. Trademarks filed in bad faith should be invalidated at any time.

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Ke Yu and Colin Darch

We build on the well-established critique, primarily in the US literature, of the following assumptions: (1) copyright protections serve to incentivise creativity; (2) copyright is designed with such incentivisation as its primary purpose; and (3) a standardized set of copyright protections should ideally be applicable to all forms of cultural production, across all situations in all countries. These assumptions lead to two fundamental conceptual flaws in much current copyright policy discourse: (1) it conflates concepts such as incentive, reward, and recognition; (2) it is nomothetic in character insofar as the existing structural and procedural diversity of the different cultural industries that it governs is inadequately acknowledged. Our critique in this article is not, therefore, a general one, but is limited to a specific theory of copyright, which pretends that copyright is an incentive to creativity while the evidence indicates that it is not. We highlight the importance of taking account of the whole ‘creativity value chain’ in the different industries with their various components – the creator, the copyright holder, the distributor, and the market. Drawing on case studies of three creative industries: literary writing, film, and fashion, we demonstrate that not only is there currently considerable heterogeneity among these industries, but that there has also been heterogeneity within each industry at different periods and in different contexts. We argue that this flexibility is a beneficial characteristic of the current functioning of copyright that should be defended against pressures in favour of harmonization.

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Zhe Wang, Yifan Lin and Yajing Zhou

How to judge the formation of Malicious Incompatibility is a problem that cannot be circumvented and is difficult to solve in the trial of new types of unfair competition on the Internet. Although the revised Anti-Unfair Competition Law explicitly stipulates Malicious Incompatibility as unfair competition, it fails to provide a clear set of judgment criteria. Germany and the United States have respectively developed complete laws and regulations and created judgment rules to deal with new unfair competition disputes arising in the development of the Internet, providing China with a lot of referential trial ideas. By collecting and analyzing the judgment documents and trial ideas of previous cases, this paper, focusing on the internal logic of malice and incompatibility in the law, tries to judge whether the behavior constitutes Malicious Incompatibility considered from the perspective of subjective purposes and the objective effects caused by the behavior and with the method of value measurement.

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Johanna Gibson

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Jessica C Lai

Patent law is considered to be an objective law, dealing with the objective subject matter of the ‘technical arts’. Yet, empirical studies show that patenting rates around the world are gendered. This article analyses the roots of the gender patent gap, and how this correlates to the invention and innovation processes. It shows that the gendered nature of the patent-regulated knowledge governance system forces women into traditionally male spaces and fields in order to partake in the extant patent game. Yet, when they enter those spaces and fields, they often find themselves unwelcome and subject to institutional, structural or organizational biases, which impinge upon their ability to invent, patent and commercialize.

This article re-frames the discourse around women inventors. It argues that we have to stop focusing on the ‘women in science, technology, engineering and mathematics (STEM)’ narrative, because it is a distraction from the underlying problem that the Western knowledge governance system reflects the hegemonic powers at play. Instead, we need to re-think the knowledge governance system and the ecosystem it creates, in order to ensure egalitarian knowledge production and protection.

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Renjun Bian

With a series of policies to stimulate innovation and patent activities, China has become a world leader in both patent applications and patent litigation. These major developments, together with the escalated US-China trade tensions, have made China an integral but controversial venue for international patent protection. The Chinese patent system, especially its detailed practice and cases, is in need of a comprehensive empirical study. This article analyzed 8766 Chinese patent invalidity cases decided between 2014 and 2016, which, together with my prior work on patent infringement lawsuits, offers a comprehensive picture on how the bifurcated patent system in China works. First, it found that only a small number, about 2.0 percent, of Chinese patents are ever subject to infringement or invalidity disputes, shedding light on the patent office's rational ignorance of a patent's validity at first place. Second, it found that the invalidity rate for invention patents in China (54.6%) was lower than in many other countries, such as the US (83.9%) and Germany (73%), indicating that the Chinese patent system is more pro-patentee than once believed. Third, it raised the question of Chinese patents’ quality based on various characteristics of these cases, including patent types and petitioners’ entity status.

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Phillip Johnson

It is usual for a court to grant a final injunction after a finding of patent infringement. But there has been some uncertainty about how this applied when the patent covered essential medical products. In Evalve v Edwards Lifescience [2020] EWHC 513 (Pat), the court explored the role of the public interest in withholding injunctions and awarding damages in lieu. It construed the public interest narrowly in part due to the existence of compulsory licences. This discussion explores the court's reasoning and suggests that an even stronger link with compulsory licences should be adopted.

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Tomohiro Mikanagi and Kubo Mačák

States are increasingly willing to publicly attribute hostile cyber operations to other States. Sooner or later, such claims will be tested before an international tribunal against the applicable international law. When that happens, clear guidance will be needed on the methodological, procedural and substantive aspects of attribution of cyber operations from the perspective of international law. This article examines a recent high-profile case brought by the United States authorities against Mr Park Jin Hyok, an alleged North Korean hacker, to provide such analysis. The article begins by introducing the case against Mr Park and the key aspects of the evidence adduced against him. It then considers whether the publicly available evidence, assuming its accuracy, would in principle suffice to attribute the alleged conduct to North Korea. In the next step, this evidence is analysed from the perspective of the international jurisprudence on the standard of proof and on the probative value of indirect or circumstantial evidence. This analysis reveals the need for objective impartial assessment of the available evidence and the article thus continues by considering possible international attribution mechanisms. Before concluding, the article considers whether the principle of due diligence may provide an alternative pathway to international responsibility, thus mitigating the deficiencies of the existing attribution law. The final section then highlights the overarching lessons learned from the Park case for the attribution of cyber operations under international law, focusing particularly on States' potential to make cyberspace a more stable and secure domain through the interpretation and development of the law in this area.