Judicial Protection of Patent Rights in China--If Apple Sued Samsung in China, What would be the

Remedies ?

ZHANG Guangliang

Renmin University of China School of Law/Institute for Intellectual Property

Oct.4, 2012

CONTENTS

Introduction

I. Remedies before docketing a case

II. Remedies during litigation

III. Final remedies

Apple v. Samsung

Verdict of the Jury

6 of the Apple patents are infringed by at least one of Samsung's 28 accused products (‘381 and ‘305 patents are infringed by all relevant accused products).

Samsung’s infringement was mostly willful.

None of Samsung's patents is infringed by the accused Apple products.

Samsung should pay damages of about $1.05 billions for 25 of the infringing products.

Three products, Fascinate, Epic 4G and Galaxy S II, are responsible for over $100 millions each.

Global Patents Wars between the Two Parties

9 countries and more than 20 cases.

In Apple’s favor: U.S., Germany.

In Samsung’s favor: UK, Japan, Netherlands

Draw: South Korea.

Not very clear: Australia, France, Italy.

China next?

I. Remedies before Docketing a Case (pre-litigation)

i. Preliminary injunction, four prongs: a. Probability of winning the case b. Irreparable harm c. Bond d. Public interest

ii. Evidence preservation pre- litigation

iii. Property preservation pre-litigation

Yearpreliminary

injunction

preservation of

evidence

preservation of

property

2010

Accepted 55 294 126

Grating Rate 89.74% 97.46 % 97.41%

2011

Accepted 130 186 20

Grating Rate 98.23% 93.42% 100%

Temporary Measures （ Pre-litigation ) for the Past Two Years

What would be the temporary measures if Apple sued Samsung

in China?

II. Remedies during litigation

（ i ） Preliminary injunction

（ ii ) Evidence preservation

（ iii ） Property preservation

III. Final remedies

i. Permanent injunction and its exception

China Environmental Project Tech Inc. (CEPT) V. Fujikasui Engineering Co.

Ltd (Fujikasui)

晶源公司 v. 富士化水株式会社

Fujian High People’s Court, the court of first instance court found infringement, as for the permanent injunction, the court held that:

As the power plant built by Huayang, one of the defendants has been equipped Natural Sea Water (NSW) FGD technology which complies with national and industry policies, in favor of constructing an Environment-friendly society, and most important, the power generated by this plant directly influence the local economy and livelihood.

In this case, if Huayang decease from using the patent process, it is going to

create bad impact to the local economy and life. In order to balance the

interests of the right owner and the public, the court did not support the claim

to prohibit Huayang from using the patent. However, since its beginning of

using the patent, Huayang should accordingly pay CEPT a royalty until the

expiration of the patent. Based on the actual situation of the patent, the court

ruled that the royalty 240,000 RMB per year.

The Supreme Court of China, court of second instance affirmed

the decision of first instance.

Would permanent injunction be granted if either the patents of

Apple of Samsung were infringed in China?

ii. Damages, compensatory not punitive

a. Lost profit

b. illegal enrichment

c. Statutory damages

d. Royalties

e. Attorney’s fees and other reasonable costs

Chint Group co., Ltd. (Chint) v. Sida Electric Device (Sida) Co., Ltd. And Schneider

Low Voltage Electric Appliance (Schneider)

Wenzhou Intermediate People’s court, the court of first instance found infringement and granted permanent injunction.

As for damages, the court adopted the data provided by Schneider Company to calculate the sale amount. The business profit margin is made based on the average profit margin of all the products sold by Schneider Company, which was: RMB 355,939,206.25.

the above amount exceeds the claimed amount RMB 334,869,872, therefore, the damages claimed by the plaintiff is whole supported by the court.

★ Procedure and results of second instance

Dissatisfied with the judgment of the first instance, Schneider Company appealed to Zhejiang High People’s Court.

During the second instance, both parties reached a global settlement agreement on April 15, 2009, and Schneider Company shall accordingly compensate 157,500,000 RMB to Chint.

How to compute the damages if either the patents of Apple or

Samsung were infringed in China ?

Thank you for your attention ！

zhangguangliang@hotmail.com