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Jing Qu and Dongguo Liang of Liu Shen & Associates consider how to best define ‘persons skilled in the art’, while examining the development of AI technologies
April 28 2021
Not all artificial intelligence (AI)-related innovations are suitable for patent protection. Some innovations with improved AI algorithms may not have a specific application field that can fit into the protection of patent, and some AI-related IP rights are not protected by the Patent Law, e.g. the data itself.
In these scenarios, the AI software owner may consider protecting it as a trade secret. Considering the nature of secrecy of trade secrets, the advantage of protecting AI algorithms or softwares in this form is that the ‘idea’ of products can be concealed.
On September 10 2020, the Supreme Court of China announced the judicial interpretation titled “Provisions of the Supreme Court on Several Issues Concerning the Application of Laws in the Trial of Civil Cases of Infringement of Trade Secrets” (hereinafter referred to as ‘new judicial interpretation’).
ZTE v Conversant and
OPPO v Sharp. All of the parties involved in the cases are active players in the telecommunication SEP field. Such a SEP ruling boom emphasises the growing importance of China as a SEP litigation venue.
One of the reasons for such flourishment of SEP litigation is the great development of telecommunication companies in China. From the 2G to 5G era, SEPs owned by Chinese enterprises have soared from less than 10% to over 30% of all declared SEPs. From another perspective, China also has a giant market for manufacturing and selling phones, which is attracting SEP implementers. Therefore, courts in China are holding relatively balanced and tolerant spirits, with no injunction to issue as principle. Courts do not intend to force those implementers to withdraw from the market, but just hope to help move forward licensing negotiations. This is the philosophy in fair, reasonable, and non-discriminatory (FRAND) injunctions in the