Commercial law overview of the judicial protection system of intellectual property in the United States

Before introducing the judicial protection system of intellectual property in the United States, the author believes that it is necessary to briefly introduce the court system of the United States, which will help to better understand the composition of the judicial protection system of intellectual property. The court system of the United States is divided into federal courts and state courts. Although the decisions of the Federal Circuit Court are binding on the state courts within its jurisdiction, there is no subordination between the state courts and the federal courts.

State court system

The state courts of various states in the United States are established according to the constitution of various states. They are generally divided into courts of first instance with limited jurisdiction, courts of first instance with universal jurisdiction, state appellate courts and state supreme courts. The court of first instance with limited jurisdiction generally deals with some civil cases and traffic violations with a small amount of dispute. Some courts also hear family cases such as divorce proceedings and child custody. State courts of first instance with universal jurisdiction have jurisdiction over a variety of cases, including civil disputes and criminal charges, and in some cases can hear appeals from state courts with limited jurisdiction. State appellate courts usually do not accept new cases and do not review factual issues, but they can review legal issues. They can challenge factual issues only when they find that the facts found by the court of first instance are obviously wrong or have no evidence at all. The decision of the state Supreme Court is final on all issues. The Federal Supreme Court can overturn the decision only when it involves federal legal issues.

Federal court system

The federal court is divided into the Federal District Court, the Federal Circuit Court of appeal and the Federal Supreme Court. The judges of the federal court are nominated by the president of the United States and approved by the Senate, and they are all lifelong. The federal district court hears cases involving federal affairs, such as federal criminal offences and the implementation of federal laws. In addition, if the plaintiff and the defendant are from different states or countries, the federal district court can still have jurisdiction even if the case can claim rights according to state laws. The federal court of Appeal hears appeals from the Federal District Court in its circuit jurisdiction. The Federal Supreme Court has first instance jurisdiction over only limited cases, such as cases involving two states or cases involving ambassadors. Its more function is to accept appeals. The Federal Supreme Court may accept appeals from the Federal Circuit Court or from the state Supreme Court. Every year, about thousands of cases apply to the Federal Supreme Court. In fact, less than 100 cases will eventually be accepted by the Federal Supreme Court.

Competent court for intellectual property disputes

Since intellectual property law is dominated by federal law, the federal court system has more jurisdiction. General intellectual property cases are first tried by the Federal District Court. If you disagree with the judgment, you can appeal to the Federal Circuit Court of appeal or the Federal Supreme Court. Because the Federal Supreme Court only accepts typical representative cases, the judgment of the Federal Circuit Court of appeal plays a key role in intellectual property litigation.

It should be noted that the Federal Circuit Court of Appeals has exclusive appellate jurisdiction over patent litigation. The specialized patent judicial system greatly reduces the judicial conflict in U.S. patent protection, and makes the interpretation and implementation of patent law tend to be standardized, consistent and deterministic. Therefore, it greatly strengthens the stability of U.S. patent legal protection. Similarly, the decisions of the federal 2nd Circuit Court of appeal in New York and the 9th Circuit Court of appeal in California have a great impact on copyright, because these two areas are high-tech and copyright industry intensive areas, and there are many related copyright cases. In terms of trademarks, the federal and state court systems have jurisdiction, but relatively speaking, the judgment of the Federal Circuit Court of appeal, especially the court of appeal in Washington, D.C., on trademark rights is more authoritative. Since there is no federal law on trade secrets, cases related to trade secrets are usually appealed by state courts.

Because the United States has a team of lawyers with high professional quality, most intellectual property dispute cases are finally resolved through continuous contact and negotiation between the acting lawyers of the plaintiff and the defendant. If they still can not be resolved after negotiation between the lawyers of both parties, they will resort to the court. At the same time, because the way to solve disputes in the United States is court trial, the judicial trial takes a long time, and the agency fees and litigation fees of both parties to the dispute are large, most of the parties to the dispute hope to be solved through negotiation between lawyers. In fact, many disputes are also solved in this way, which constitutes a major feature of dealing with intellectual property dispute cases in the United States.

Judicial relief against the decision of the patent and Trademark Office

The U.S. patent and Trademark Office is responsible for examining patents and trademark applications and handling cases such as patent invalidity and trademark disputes. If the applicant is not satisfied with the examiner's decision, he may file a reexamination with the patent or trademark trial Reexamination Board within the patent and Trademark Office. The reexamination board may approve the decision of the examiner or modify the decision of the examiner. An applicant who is not satisfied with the decision of the trial review board may file a lawsuit directly to the Federal Circuit Court of appeal or to the Federal District Court. The Federal Circuit Court of appeals reviews the decision of the trial review board according to the records of the United States Patent and Trademark Office, and can deny the factual findings of the United States Patent and trademark office only in the absence of substantive evidence. If the applicant chooses to file a civil action against the director of the United States Patent and Trademark Office in the Federal District Court in the Eastern District of Virginia, the applicant may file new evidence that the United States Patent and Trademark Office has no opportunity to consider. If the applicant submits new evidence, the federal district court must make a new factual decision based on the new evidence and the administrative records of the United States Patent and Trademark Office.

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Civil liability for intellectual property infringement

Generally speaking, the injured party of intellectual property seeks legal aid through civil litigation, and criminal sanctions will be imposed on the infringer only in very few cases.

1. Copyright

Copyright is protected by the federal copyright act, which expressly stipulates that "the legal or beneficial owner of the exclusive copyright has the right to sue for any infringement." the copyright owner can sue the infringer in the Federal District Court. If the copyright owner's lawsuit is successful, the court will make a remedial decision on the copyright owner, that is, compensation or injunction. An individual or institution without the permission or authorization of the copyright owner will violate the copyright under the following circumstances: 1) copy a copyrighted work; 2) Deduce derivative works; 3) Distributing copyrighted works; 4) Public performance of copyrighted works; 5) Public display of copyrighted works; 6) Transfer copyrighted works through digital audio.

In addition, the optimized intellectual property and resources organization act of the United States relaxed the conditions for copyright owners to request court relief. The original copyright law stipulates that although registration is not a prerequisite for enjoying the copyright of a work, it is a condition for the obligee to file an infringement lawsuit. The act stipulates that "unless the deviation in copyright registration is intentional and will cause the copyright director to refuse registration, it shall be deemed to meet the requirements of registration. The court shall consult the copyright director when hearing such cases", so as to focus more on the substantive protection of the interests of copyright owners.

2. Patents

The Federal Patent Law also expressly stipulates the acquisition and protection of patent rights. The patent law gives the patent owner the right to prohibit others from manufacturing, using, selling and importing the patented product. The patent owner can bring a lawsuit against the patent infringer in the Federal District Court in order to obtain legal aid.

The patent owner must be able to prove that the defendant infringed the rights of the patent owner. Usually, the patent owner must maintain the validity and enforcement of the patent, otherwise the infringer will face the patent challenge from all parties, even the authorized patent.

3. Trademarks, unfair competition and trade secrets

The federal trademark law protects the exclusive right of the trademark owner and prohibits others from using the trademark to confuse the consumer's cognition of the product or service. According to the Lanham act, the Federal Trademark Law, the trademark owner can bring a lawsuit in the Federal District Court or exercise his rights in the state court according to the state common law.

The plaintiff can also bring a lawsuit according to the unfair competition law, which involves a much broader scope than the trademark law. Unfair competition involves any commercial act that confuses, misleads or deceives the public about the sale of a product or service and related activities, such as the abuse of trade secrets, and trade secrets themselves also involve the scope of another separate law.

The trade secrets law protects valuable business information and prohibits others from embezzling it. Embezzlement means that the infringer obtains the trade secret by abusing the confidential relationship or other improper means. Under the following conditions, the owner of trade secret can take the infringer to the state court or federal court: 1) have a secret of commercial value; 2) The infringer obtains illegal secrets; 3) The owner of trade secret has taken reasonable measures to protect the secret. The distinguishing feature of trade secret is that the obligee must prove that the infringer has known or should have known the trade secret information. This is different from the infringement of patent rights without the knowledge of the infringer in the patent law.

4. Discovery of pre-trial evidence

One of the distinctive features of the American litigation system, including intellectual property litigation, is evidence discovery. Evidence discovery is a pre-trial procedure in which a party or an attorney forces the other party to produce evidence by asking the other party to produce documents or evidence, or by means of sworn testimony, written questions and so on. The evidence presented by him is not only the evidence for his own benefit, but also the evidence for his own disadvantage. The purpose is to further collect evidence and disclose the facts. Through the evidence discovery system, the evidence of all parties before trial has surfaced, the facts of the case are generally clear, and professional lawyers can basically judge the result of the case. Therefore, the probability of withdrawing the lawsuit or reaching a settlement before trial is relatively high, which is also an important reason why the proportion of civil litigation in the United States, including intellectual property litigation, really enters the substantive trial and the number of cases judged by the court is not too high.

Suggestions for Chinese Enterprises

With the increasing number of Chinese enterprises and individuals entering the U.S. market year by year, the risk of intellectual property litigation is also increasing in today's increasingly competitive environment between China and the United States. Intellectual property law is regional. Although many principled issues are common, the specific provisions of each country sometimes vary greatly. For Chinese business entities entering the U.S. market, the first thing to do is to understand and be familiar with U.S. intellectual property laws and regulations, and do a good job in the early retrieval of patents and trademarks to minimize the possibility of rights conflict. Secondly, it is necessary to improve the internal intellectual property management documents to prepare for possible litigation or rights protection in the future. In case of intellectual property litigation, we should immediately seek the advice of professional lawyers, especially considering that the litigation procedures in the United States are very different from those in China, and the link of evidence discovery alone is very complex. Hiring experienced American lawyers can overcome the weakness of being unfamiliar with the American judicial system. In addition to responding passively, when the time is ripe, you can also take the initiative to put forward counter measures such as counterclaim and requesting administrative investigation. Chinese companies should also realize that the out of court settlement rate of American intellectual property litigation is very high. Under the guidance of lawyers, they should consider the litigation cost, fully explore their own advantages and the other party's disadvantages, and strive to reach a settlement agreement acceptable to both sides.

Source: China Trade News

Author: Feng Pu, New York Representative Office of patent and Trademark Office of China Council for the promotion of international trade

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