Byte-Sized Protection: Keeping Kids Safe Online, One Risk Assessment at a Time
The protection of children on the internet has been a huge focus in the media lately, from calls for protection of children online from bereaved parents travelling to the United States to calls from the Duke and Duchess of Sussex for more to be done to protect children online.
Last Thursday (24 April 2025), Ofcom published a major policy statement containing 6 volumes and 8 finalised guidance as part of its Phase 2 implementation of the Online Safety Act (OSA) for protecting children from harm online. Given the media coverage and Ofcom’s policy statement, the protection of children online is under even greater scrutiny than before.
As part of OSA Phase 1 implementation, Ofcom has shown it is serious with its enforcement on platforms’ OSA duties. More information can be found in our previous article here.
In this article, which is a wider series about the Online Safety Act, we explore what additional measures will be implemented to keep kids safe online.
Access by children – the Children’s Access Assessment (deadline 16 April 2025)
From 16 April 2025, all platforms regulated under the OSA (i.e. platforms anywhere in the world with links to the UK) are expected to have completed their Children’s Access Assessment. Platforms need to assess (at the minimum every 12 months) whether it is likely for children to access their platform, with considerations of:
Is it possible for children to normally access the service; AND
Either:
Are there a significant number of children who are users of the service; OR
Is the service of a kind likely to attract a significant number of children?
Satisfying Questions 1 and 2 will result in the outcome that it is likely for children to access the assessor’s platform. Whilst this is relatively easy to complete, it demonstrates the expectation from the OSA and Ofcom for all providers to consider the impact and risk of access by children on their platform even if they provide adult-only content (such as pornography). Ofcom has made this clear by citing evidence that children may be attracted to dating and pornography services. Unless platforms have implemented ‘highly effective age assurance’, Ofcom expects the risk assessment to determine that it is likely for children to access the platform.
Be sure to look out for our upcoming article in June on ‘highly effective age assurance’ which is required to be in place for adult content providers by July 2025.
Protection of children – the Children’s Risk Assessment (deadline 24 July 2025)
The Children’s Risk Assessment must be conducted every 12 months by all platforms likely to be accessed by children. It categorises harmful content to children in three categories:
Primary Priority Content (PPC): i) pornography; ii) content that encourages, promotes, or provides instructions for suicide; iii) content of the same for deliberate self-injury; and iv) content of the same for behaviours associated with an eating disorder. (4 types of PPC)
Priority Content (PC): 8 types of content as outlined by the Ofcom guidance, similar to the 17 priority illegal harms, such as abuse, hate, bullying and violence. (8 types of PC)
Non-Designated Content (NDC): content which presents material risks of significant harm to children in the UK, such as body-shaming or body-stigmatising content or content promoting depression, hopelessness and despair. (at least 2 types of NDC as identified by Ofcom)
Platforms must then conduct a risk assessment on i) the likelihood of a child encountering the harm; and ii) the impact to children from the kind of content, for each of the 4 PPCs, 8 PCs and at least two of the NDCs identified by Ofcom as well as any additional NDCs identified by the platform.
Non-Designated Content
Identifying and assessing NDC may be challenging as they are non-specific and Ofcom expects platforms to be able to review its service in-depth and to identify NDC. This means platforms cannot rely on Ofcom to outline the risks they need to consider, and must identify and assess additional risks unique to their platforms. Platforms are likely to requirement expert help in assessing these risks.
Platforms are also under an obligation to report identified NDC to Ofcom at [email protected]. Whilst there is no specified timeframe for reporting, it is likely that newly identified NDC would have arisen at the most recent Children’s Risk Assessment and should be reported accordingly upon conclusion of the risk assessment.
The Children’s Risk Assessment and the Illegal Harms Risk Assessment
The Children’s Risk Assessment employs the same methodology as the Illegal Harms Risk Assessment in terms of how risk assessments are conducted, which should have been in place for all platforms from 16 March 2025. Platforms are expected to have evidential input into its risk assessment such as core inputs of user data and incident reviews as well as enhanced inputs such as product testing data and consultations.
The same record-keeping requirements also apply, so the information captured in the Children’s Risk Assessment should largely be the same as the Illegal Harms Risk Assessment.
There is an inevitable overlap of the risks considered in the Illegal Harms Risk Assessment and the Children’s Risk Assessment. Ofcom still expects a separate risk assessment into the risks and harms but specifically in the context of protecting children online, however both sets of risk assessments should work alongside each other to outline risks specific to illegal harms and/or the protection of children.
The Protection of Children Code
Similar to the recommended measures of the illegal content code of practice, Ofcom has published c. 70 recommended measures for user-to-user services and search services to implement following completion of the Children’s Risk Assessment. The recommended measures under the Protection of Children Code are broadly similar to the illegal content code, such as requirements for governance and accountability, content moderation, and reporting and complaints.
However, there are additional measures such as age assurance processes and default settings for children. It is expected the same ‘comply or explain’ approach and the ‘forbearance period’ of up to six months would apply, as such by February 2026, platforms should have these measures implemented, failing which enforcement penalties of fines of up to £18m or 10% of global turnover, whichever is higher, could apply to those in default.
Next steps
Our advice is that platforms should use their existing Illegal Harms Risk Assessment to aide construction of their Children’s Risk Assessment. Adult content providers who are yet to implement ‘highly effective age assurance’ will have to update their Children’s Access Assessment once it is implemented by July 2025, as such it is unlikely they will need to conduct a Children’s Risk Assessment.
Ofcom is consulting on changes to the requirement of blocking and muting user controls as well as disabling comments for services between 700,000 to 7 million monthly UK users, as opposed to only services with 7 million monthly UK users. The consultation closes 22 July 2025 and is available here. There is also an existing consultation on the draft guidance for how to protect women and girls online which closes 23 May 2025 and is available here.
Phase 2 implementation of the OSA is well and truly underway, two additional risk assessments and over 70 recommended measures will add significant obligations to platform providers on top of their duties on illegal harms. The overlap of risks should make it easier for platforms, but considerations should be made to ensure these overlapping risks and assessments complement each other and are consistent.
EU Regulators Take Different Enforcement Paths for ESMA ESG Fund Name Guidelines
European regulators have taken different routes as to how they plan to enforce the European Securities and Markets Authority’s (“ESMA”) guidelines (the “Guidelines”) with respect to the use of sustainability‑related terms in fund names. The deadline to implement these changes for existing funds is by 21 May 2025 and has applied to new funds in scope from 21 November 2024.
The Guidelines set out minimum exclusionary criteria for funds with sustainability‑related terms in their names as well as requiring minimum asset allocation levels in line with the environmental and/or social characteristics promoted or sustainable investment objectives. For further information on the Guidelines themselves, please see our alert here.
ESMA has commented that a “temporary deviation” from the threshold and/or exclusions requirements in the Guidelines will generally be treated as a “passive breach” and should be corrected in the best interest of investors, provided that the deviation is “not due to deliberate choice” by the fund manager.
Supervisory action may be taken where there are discrepancies in quantitative thresholds that are not explicitly passive breaches or in circumstances where the fund does not demonstrate a substantively “high level” of investments to reference the sustainability‑related term(s) in its name.
As noted by the Responsible Investor (link to article attached here), EU regulators have confirmed a variety of approaches so far, as outlined below:
More stringent approaches
Austria
Austrian Financial Markets Authority
The Austrian regulator stated that any violation of the Guidelines will be committing an administrative offence and liable for a fine of up to €60,000 in line with the Investment Funds Act.
Belgium
Belgium Financial Services and Markets Authority
With respect to enforcement tools, the Belgian regulator has noted that they will look to impose administrative and remediation measures such as orders to be dealt with by a specific deadline if they suspect greenwashing.
Norway
Financial Supervisory Authority of Norway
The Norwegian regulator specified that enforcement will be aligned to possible supervisory actions taken in other areas and may include corrective orders to be determined by the severity of the violations. For more severe violations, fines may be imposed.
Croatia
Croatian Financial Services Supervisory Agency
The Croatian regulator has noted that it will apply a proportionate enforcement approach which can range from formal warnings, requests for corrective action, to administrative measures for serious or repeated breaches.
Lithuania
Bank of Lithuania
In cases of non‑compliance, the Bank will instruct management companies to rectify the situation and sanctions may be applied in accordance with existing regulation.
Liechtenstein
Liechtenstein Financial Market Authority
The regulator has noted that they will evaluate whether enforcement action will be necessary, but that any procedures will follow existing alternative investment fund manager law ranging from warnings to fines.
Spain
Spain National Securities Market Commission
The Spanish regulator has confirmed that it will set reminders to managers to adapt before the end of the transitional period. If non‑compliance is determined after this date, measures will be implemented to align with Spanish collective investment scheme regulations.
Lighter touch approaches
Luxembourg
Luxembourg regulator CSSF
The Luxembourg regulator has noted that subject to relevant circumstances, it may consider further investigation and enter into a supervisory dialogue with market participants where necessary.
Italy
Italian Companies and Stock Exchange Commission
The Italian regulator has confirmed that it will also open dialogue with any managers that might be in breach of the guidelines.
France
Autorité des Marchés Financiers
The French regulator has said that it is planning to rely on its existing enforcement tools to sanction “established” regulatory breaches.
Ireland
Central Bank of Ireland
The Irish regulator has noted that it plans to assess compliance once the implementation period has concluded but has noted that this will be multifaceted in nature.
Denmark
Danish Financial Supervisory Authority
The Danish regulator has commented that supervisory actions will depend on the circumstances, but that “significant breaches” may result in an order being issued to the fund to remedy the situation by a specific deadline.
Germany
BaFin
BaFin has flagged that it has the power to issue orders in line with the German Capital Investment Code, but that the Code does not stipulate that managers should be fined solely on the basis that the fund name is misleading.
Malta
Malta Financial Services Authority
The Maltese regulator has confirmed that they will complete gap analysis to determine fund compliance, which could subsequently lead to other supervisory engagements.
Finland
Finnish Financial Supervisory Authority
The Finnish regulator has not disclosed any current enforcement plans, but not that there are disclosure requirements with respect to ESG thresholds and exclusions present in their current regulatory regime.
Estonia
Estonia Financial Supervisory Authority
The Estonia regulator chose not to disclose any information relating to their supervisory activities due to legal and confidentiality conflicts.
European Commission Fines Apple and Meta for Non-compliance with the DMA
On April 22, 2025, the European Commission announced its first non-compliance decisions under the Digital Markets Act (“DMA”). In these decisions, the European Commission fined Apple EUR 500 million and Meta EUR 200 million for non-compliance with their obligations under the DMA.
According to the European Commission, Apple failed to meet its obligation to open its system to alternatives to the Apple App Store due to technical and commercial restrictions it imposed on developers. As such, in addition to the fine, the European Commission ordered Apple to remove the technical and commercial restrictions limiting developers from steering users to alternatives to the Apple App Store.
Regarding Meta, the European Commission considered that by offering a binary “consent or pay” model for Facebook and Instagram between March 2024 (when the DMA obligations became legally binding) and November 2024, Meta had infringed the DMA’s rule requiring gatekeepers to seek users’ consent for combining their personal data between services. Users who do not consent must have access to a less personalized but equivalent alternative. In November 2024, Meta introduced a different version of the free personalized ads model, offering a new option that uses less personal data to display advertisements. The European Commission is currently assessing the compatibility of Meta’s new “consent or pay” model with the DMA.
Read the Press Release.
Germany’s 2025 Coalition Agreement: Reforms for the Media, Film, and Creative Industries
The newly published German Coalition Agreement 2025 (CA 2025), German language version available here, outlines the agenda of the new German government for the next four years. For the government’s cultural and media policy, the CA 2025 outlines measures that seek to strengthen Germany as a filming location and further develop the film industry. Proposals on new regulation and funding instruments relevant to the media, film, and other creative industries are particularly noteworthy.
Film Funding Reform and Production Subsidies: Tax Incentive Model and Investment Obligation
Film Funding System Reform: The federal government announced a fundamental reform of the film funding system (Z. 3889) to sustainably strengthen Germany’s international competitiveness as a filming location.
Tax Incentive Model: The government plans to introduce a tax incentive model (Z. 3890) that would make film production investments more attractive. The previous federal government had already discussed a similar model, under which a certain percentage – the considerations ranged between 10% and 30% – of eligible production costs for films or series would be tax-deductible. Many European countries already implement this kind of incentive. The specific details (including the final percentage) of the proposed model must still be negotiated between the new coalition parties.
Investment Obligation: An investment obligation would supplement the tax incentive model (Z. 3890), another measure that the previous federal government had considered. VOD platforms would be required to reinvest a certain percentage – 20% was the number previously discussed – of their German revenues into European productions. However, the specifics of this requirement remain unclear and would need to be worked out by the new coalition.
German Film Subsidy Act: The German Film Subsidy Act (Filmförderungsgesetz) is to be further developed in close consultation with the industry (Z. 3891); however, the CA 2025 does not specify any key areas or specific amendments.
Investment Incentives: The German government wants to support cinema operators through reliable investment incentives (Z. 3892) and targeted support for cultural diversity.
Platform Levy: The German government will look into imposing the long-discussed levy for online media platforms; the revenues are intended to “strengthen Germany as a media location” (Z. 3913). Details concerning the levy, such as its intended scope and targets, remain unclear.
Film Heritage: The German government would also advance the digital preservation of film heritage (Z. 3893).
Focus on the Music Industry, Clubs, and Publishing
Pop Culture Promotion: The federal government is committed to the targeted promotion of the music industry and pop culture – in particular through a “Music Initiative” (Z. 3895) and other federally funded programs.
Protection of Clubs: So-called “cultural protection areas” (Kulturschutzgebiete) would be established (Z. 3896) in which clubs are considered protected cultural venues.
Musical Instrument Manufacturing: A more sector-specific regulatory framework is also being considered for musical instrument manufacturers (Z. 3898).
Publishing: The federal government and the states will look into establishing structural subsidies to ensure diversity in the German book market (Z. 3899).
Fair Remuneration Models and Social Security for Creatives
Fair Renumeration: A central concern of the federal government is to strengthen fair and transparent remuneration models, particularly in the digital music market (Z. 3903). The aim is to ensure that creative services are adequately remunerated, and intellectual property rights can be consistently enforced (Z. 3902).
Social Security for Artists: At the same time, the social security systems for artists and creatives would be strengthened and better aligned with the often project-based, hybrid forms of employment in the arts and creative industries (Z. 3905).
Preserving Media Diversity
Maintaining the Dual Broadcast System: The government wants to strengthen both the public broadcast system (Z. 3911) and the regulation and refinancing of private media companies (Z. 3912).
Strengthening Competition: Antitrust law would be further developed at all levels and integrated with the state media concentration laws in order to control mergers between media companies and media-related infrastructure providers (Z. 3920).
European Dimension, Games, and Youth Protection
Development of a European Media Platform: The government supports developing a European media platform involving ARTE, the Franco-German public service broadcaster (Z. 3941). This aligns with existing plans to further develop ARTE into a pan-European platform by expanding its multilingual offerings and strengthening partnerships with other European media organizations.
Protection of Minors: The German government emphasizes the importance of media literacy in today’s digital era and plans to increase the protection of minors in the media (Z. 3944). The aim is to create a coherent legal framework across Europe, federal, and state levels to reduce parallel structures and simplify law enforcement (Z. 3946). Specifically, the Youth Protection Act would align with the Digital Services Act (DSA) and the State Treaty on the Protection of Minors in the Media (Z. 3947). A particular focus is on technical protection measures, as the German government wants age verification systems on digital devices to become the standard across Europe – with potential implications for device manufacturers, platform operators, and app providers (Z. 3948).
Games: Games are a cultural asset and an innovation driver, which is why the government plans to support the gaming industry through tax incentives and reliable programs.
Conclusion
The CA 2025 highlights the vital role of the media and creative industries, along with media diversity, in strengthening Germany’s position as a hub for innovation and culture. To address current and emerging challenges, the new federal government is considering a range of regulatory measures aimed at supporting and safeguarding this sector. In particular, tax incentives, investment obligations, a proposed new platform levy, and modified concentration laws for media companies represent central levers that industry players should observe from an early stage and take advantage of opportunities for consultation and engagement.
BaFin Publishes Draft Guidance Note on the Influence by Investors
On 14 March 2025, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) published a draft Guidance Note on the possibility of investors taking influence on investment funds. The draft contains explanations and potential concerns regarding investor influence or input on investment decisions by third-party managers to investment funds. BaFin emphasizes the principle of third-party management, according to which the final decision rests with the management company (KVG) or a portfolio manager (in the case of outsourcing). BaFin views instructions as well as approval and veto rights of investors regarding individual transactions critically with regard to the principle of third-party management. BaFin also takes a critical view of acquisition initiatives (recommendations) essentially originating from the investors if the KVG no longer carries out its own evaluation. This may be particularly relevant in connection with institutional funds. The consultation ended on 31 March 2025.
ESMA Publishes Guidelines on the Classification of Crypto-Assets As Financial Instruments
On 19 March 2025, the European Securities and Markets Authority (ESMA) published guidelines on the conditions and criteria for the classification of crypto-assets as financial instruments. According to ESMA, crypto-assets can be classified as transferable securities, money-market instruments, units in collective investment undertakings, derivative contracts or emission allowances in accordance with the Markets in Financial Instruments Directive (MiFID II). In the guidelines, ESMA – like BaFin in the past – reaffirmed the principle of technological neutrality. This means that an asset classified as a financial instrument remains a financial instrument from a regulatory perspective and is primarily regulated by MiFID II even if it is tokenized. For example, a crypto-asset can be a transferable security within the meaning of MiFID II if it is not an instrument of payment, is fungible, and is negotiable on the capital market. A crypto-asset that conveys a proportional share in a portfolio managed according to an investment strategy, without providing investors with control options (e.g., voting rights), is generally a unit or share in an investment fund. In addition, the guidelines serve to further specify the types of crypto-assets. The guidelines apply from 18 May 2025.
EBA Consults on Regulatory Technical Standards for the EU Anti-Money Laundering Package
On 6 March 2025, the European Banking Authority (EBA) published drafts of four Regulatory Technical Standards (RTS) on the European Union’s new anti-money laundering package (AML/TF package) for consultation. The anti-money laundering package consists of four legal acts that were published in the Official Journal of the European Union on 19 June 2024 and are to be applied or implemented in stages from 1 July 2025. Essentially, a new authority will be created that will directly supervise certain financial institutions in the EU, the approaches of national supervisory authorities and Financial Intelligence Units (FIUs) within the EU will be harmonised and a uniform set of rules for the prevention of money laundering and terrorist financing will be introduced for the first time. The consultation is open for feedback until 6 June 2025 and the EBA intends to submit its final report to the European Commission on 31 October 2025.
BaFin Supplements Interpretation and Application Guidance on the German Anti-Money Laundering Act
In March 2025, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) again revised its interpretation and application guidance on the German Anti-Money Laundering Act (Auslegungs- und Anwendungshinweise (AuA) zum Geldwäschegestz), which was last updated on 29 November 2024, and added guidance on crypto-asset service providers and certain issuers of asset-referenced tokens, following the publication of the German Financial Market Digitalisation Act (Finanzmarktdigitalisierungsgesetz) on 27 December 2024. In addition, information on increased due diligence obligations for crypto-asset transfers with self-hosted addresses has been included.
ESMA Consults on Simplification of Insider Lists
On 3 April 2025, the European Securities and Markets Authority (ESMA) published a consultation paper with draft implementing technical standards to extend the simplified format for drawing up and updating insider lists for issuers admitted to trading on Small and Medium Enterprises (SME) Growth Market to all issuers. A corresponding mandate for ESMA can be found in the EU Listing Act. The implementing technical standards are to contain three different model templates for insider lists, which differ depending on whether the respective Member State has decided against limiting insider lists to those persons who, due to the nature of their function or position with the issuer, always have access to inside information. The proposals aim to reduce the burden associated with the creation of insider lists. The consultation ends on 3 June 2025.
BaFin Studies on the Certificates‘ Market
On 12 March 2025, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) published information on two market studies in which it examined the certificates’ market for retail investors, particularly with regard to distribution practices. One study explicitly dealt with interest and express certificates, the other with turbo certificates. BaFin examined both manufacturers and distributors, and also surveyed nearly 2,000 investors who had invested in the relevant products.
In the study on interest and express certificates (investment certificates) conducted from May 2024 to February 2025, BaFin initially noted that while these products had experienced increased sales since the end of the low-interest rate phase, no systematic misconduct or even serious deficiencies were found with regard to product distribution.
However, BaFin criticized the sometimes-flawed design of products with regard to the chosen target market definition and the fact that investors in express certificates often lacked an understanding of their functionality and risks. BaFin has announced, among other things, that it will focus its ongoing supervisory activities on this area.
In the study on turbo certificates covering the period from 2019 to 2023, BaFin noted a sharp increase in the market volume of such products but also came to the conclusion that almost ¾ of investors had to realize losses on their investments during the period under review, which amounted to a total of around EUR 3.4 billion. BaFin intends to publish detailed results in the second quarter of 2025; further measures to protect investors are still being examined.
ESMA Publishes Facilitation For the Provision of Research
On 8 April 2025, the European Securities and Markets Authority (ESMA) published its Technical Advice to the European Commission on the amendments to the research provisions in the MiFID II Delegated Directive. Since MiFID II, analyses (so-called “research“) are generally considered as inducements, meaning that the fees for research services must be paid by the financial service providers subject to MiFID II themselves or from a separate, client-related research payment account (so-called “unbundling regime”). Deviations from these requirements were already permitted for non-large financial service providers as part of the relief measures during the covid pandemic. Further simplifications have now become possible in connection with the EU Listing Act. ESMA therefore proposes the possibility of a joint payment of execution and research fees, regardless of the size of the financial service provider. In addition to an agreement on the part of the financial services provider, further prerequisites are that excessive payments for research and an impairment of the best possible execution of client orders are avoided.
ESMA Publishes Translations of Guidelines on the Common Classification of Crypto-Assets (MiCAR)
On 10 March 2025, the European Securities and Markets Authority (ESMA) published the official translation of the guidelines on templates for explanations and opinions, and the standardised test for the classification of crypto-assets under the MiCAR Regulation.
The guidelines contain the specific templates for:
Content and form of the explanation to be attached to the white paper that the crypto-assets are not a crypto-asset exempt from MiCAR, an e-money token or an asset-referencing token;
Content and form of the legal opinion to be submitted to the authorities for asset-referencing tokens;
A uniform test to be applied by the authorities to classify crypto-assets.
The guidelines will apply from 12 May 2025.
China’s Supreme People’s Court Releases Summary of the Annual Report on the Application of Law in Intellectual Property Cases (2024) Listing 43 Case-Derived IP Laws
On April 21, 2025, China’s Supreme People’s Court released the Summary of the Annual Report on the Application of Law in Intellectual Property Cases (2024) (全国法院知识产权案件法律适用问题年度报告（2024）摘要) listing 43 laws derived from 2024 IP litigation cases. While China is not a common law country, China’s SPC regularly releases guiding or typical cases as well as these summaries to promote uniformity to help ensure similar cases are treated consistently across different courts.
A translation follows. The original text is available here (Chinese only).
I. Patent Case Trial
1. The characterization of patent evaluation reports in patent infringement disputes
【Case Number】
（2024）最高法民再244号
[Judgment Summary]
In patent infringement disputes, patent evaluation reports can be used as one of the evidences in the trial of the case, but the validity of the patent involved should still be judged based on the patent authorization text and the effective decision of the administrative department [China’s National IP Administration]. In the case where the patent owner files an infringement lawsuit based on a valid patent, it cannot be determined that the patent owner does not have the basis to exercise the right to sue, and then the lawsuit can be dismissed simply because the patent evaluation report makes a negative conclusion that the patent involved does not meet the statutory authorization conditions.
2. Coordination of patent infringement determinations in related cases
【Case Number】
（2023）最高法知民终740号
[Judgment Summary]
For the same alleged infringing products, the same patent rights, and the same grounds for non-infringement defense, the determination of related cases should be consistent to prevent conflicts in judgment. Even if the alleged infringer does not appeal after the first-instance judgment, the second-instance court can also change the judgment and determine that the relevant defense of the alleged infringer is also established based on the determination of the establishment of the same grounds for defense in another effective judgment.
3. Judgment with performance conditions and interest on debt during the period of delayed performance
【Case Number】
（2024）最高法知民终370号
[Judgment Summary]
1. If the patent invalidation procedure is suspended due to property preservation measures being taken against the patent involved, and the National Intellectual Property Administration fails to make a decision on the invalidation request before the judgment of the patent infringement lawsuit, the people’s court may make corresponding arrangements for the performance of the obligations determined by the judgment according to the specific circumstances of the case, including adding necessary conditions to the performance of the judgment items such as cessation of infringement and compensation for losses. For example, the patent claim based on which the patent right holder filed the lawsuit can be made into a precondition for the performance of the judgment item after the National Intellectual Property Administration makes a decision to maintain the validity of the patent claim, and make arrangements for the debt interest during the period, so as to reasonably balance the interests of all parties.
2. For a judgment with attached performance conditions, the debt interest for the period of delayed performance may be ordered at the same time, that is, after the performance conditions of the judgment are met, interest shall be calculated based on the loan market quotation rate for the same period announced by the National Interbank Funding Center from the date of delivery of the effective judgment to the date when the performance conditions are met; if the obligation to pay money is still not performed after the performance conditions determined by the judgment are met, the debt interest for the period of delayed performance shall be doubled.
4. Handling of patent infringement judgments that have been executed after the examination decision declaring patent rights invalid
【Case Number】
（2024）最高法知民再1号
[Judgment Summary]
1. The enforcement actions after the decision to declare a patent right invalid does not fall under the circumstances stipulated in the second paragraph of Article 47 of the Patent Law that the invalidation decision does not have retroactive effect on the effective patent infringement judgment. The relevant enforcement funds should generally be ordered by the enforcement court in the execution reversal procedure to order the applicant for enforcement to return the acquired property and interest to the person subject to enforcement. The people’s court may also order the return in the retrial judgment depending on the circumstances.
2. For patent infringement judgments involving multiple alleged infringers, if the different execution times of the compensation obligations of different alleged infringers result in different application results of Article 47, paragraph 2 of the Patent Law, which violates the principle of fairness, the People’s Court may apply the provisions of Article 47, paragraph 3 of the Patent Law to deal with it.
5. Treatment of a Class I declaration made by a generic drug applicant before patent information registration
【Case Number】
（2023）最高法知民终1593号
[Judgment Summary]
If the drug marketing authorization holder correctly registers the patent information within the prescribed period, but the generic drug applicant has made a Class I statement before the registration, the drug marketing authorization holder should have the opportunity to require the generic drug applicant to promptly apply to change its statement type within a reasonable period. If the generic drug applicant applies to change its Class I statement to a Class IV statement, or refuses to apply for change within a reasonable period, or applies to change to other erroneous statements, the People’s Court shall accept and conduct substantive review of the drug patent linkage lawsuit filed by the patent right holder.
6. Handling of changes in drug technical solutions in drug patent linkage disputes
【Case Number】
（2023）京73民初855号
[Judgment Summary]
In cases of disputes over drug patent linkage, the people’s court shall use the technical solution of the drug review and approval department to determine whether the drug falls within the scope of patent protection. The applicant for drug marketing authorization shall promptly and truthfully explain to the people’s court any changes in the technical solution that affect the judgment of whether it falls within the scope of patent protection, otherwise it shall bear adverse consequences in accordance with the law.
7. Identification of the Inventor of a Utility Patent
【Case Number】
（2022）苏05民初925号
[Judgment Summary]
The invention patent for use is an invention based on the discovery of new uses of known compounds. Its core is not the known compounds themselves, but the discovery and application of new uses of known compounds. If the proposal of the invention concept of “new uses of old drugs” plays a key role in research and development activities, the person who proposes the invention concept, makes substantial contributions to the formation or substantial improvement of specific technical solutions, and makes substantial contributions to phased research and development can be listed as the inventor.
8. Identification of usage environment characteristics and infringement judgment
【Case Number】
（2022）沪73知民初223号
[Judgment Summary]
The identification of the characteristics of the usage environment can be based on the invention title, invention theme, and the claims of the involved patent, combined with the content of the specification for comprehensive judgment. When considering whether the accused technical solution has the relevant usage environment features of the patent claims involved, it is not required that the accused infringing product necessarily has components related to the usage environment features, as long as the accused infringing product can be applicable to the usage environment defined by the usage environment features.
9. Inventions and creations related to sacrificial offerings that violate social ethics and harm public interests should not be granted patent rights
【Case Number】
2023）最高法知行终2号
[Judgment Summary]
1. The patent system is intended to protect inventions and creations that can promote scientific and technological progress and economic and social development. So-called “inventions and creations” that have no substantial benefits for scientific and technological progress and economic and social development should not be protected by patents. The understanding and application of specific provisions, including the first paragraph of Article 5 of the Patent Law, should be based on the legislative purpose stipulated in Article 1 of the Patent Law.
2. In judicial practice, the core socialist values should be used as a guide to advocate and promote social morality that meets the requirements of the times and is recognized by the people. Even if a certain sacrificial product does not belong to feudal superstitious funeral products, it may still fall under the circumstances of violating social morality or harming the public interest as stipulated in Article 5, Paragraph 1 of the Patent Law.
10. Acceptance of deletion amendments to claims during oral proceedings of patent invalidation examination
【Case Number】
（2022）最高法知行终870号
[Judgment Summary]
During the oral hearing of patent invalidation examination, if the National Intellectual Property Administration considers that some of the modified claims are unacceptable, the patentee shall be allowed to delete the unacceptable claims in the current claims text and use the remaining acceptable claims as the basis for examination. Regardless of whether the deletion is proposed orally or in writing by the patentee in court, the National Intellectual Property Administration shall generally accept it; if the replacement page is not submitted in court, the National Intellectual Property Administration may require it to be submitted within a certain period of time; if the replacement page is not submitted within the specified period of time, it can be regarded as the patentee has not modified the claims in accordance with the law, and corresponding treatment shall be made accordingly.
11. Whether the scope of the design for which protection is sought is clearly shown
【Case Number】
（2024）最高法知行终672号
[Judgment Summary]
If, based on the general consumer’s knowledge level and cognitive ability, taking into account the patent views, usage status diagrams and general common sense, there are still multiple possible designs for the design shown in the design patent drawings, then it can be determined that the design patent document fails to clearly show the design of the product for which patent protection is sought.
II. Trial of Trademark Cases
12. Factors to be considered in determining infringement of geographical indication certification trademark rights
【Case Number】
（2024）最高法民再21号
[Judgment Summary]
The following factors need to be considered in determining whether the alleged infringing behavior constitutes an infringement of the geographical indication certification trademark right: first, whether the alleged infringing goods meet the conditions for using the geographical indication trademark, that is, the goods come from a specific place of origin; second, whether the alleged infringing goods have the specific qualities of geographical indication products; and third, whether the alleged infringing behavior is likely to cause confusion and misunderstanding among the relevant public about the source and specific quality of the goods.
13. Determination of the Prior Use Defense of a Trademark
【Case Number】
（2024）最高法民再218号
[Judgment Summary]
The application of the defense of prior use of trademarks requires a balance between the interests of the prior user of the trademark and the exclusive right holder of the registered trademark. If a trademark identical or similar to another person’s registered trademark is used in good faith on the same or similar goods and has a certain influence, the prior user has the right to continue using it within the original scope; if the prior use is earlier than the trademark application date but later than the use time of the trademark registrant, and there is evidence to prove that the prior user knew or should have known, etc., the prior use defense is not established.
14. Determination of legitimate use of scenic spot names
【Case Number】
（2024）最高法民再123号
[Judgment Summary]
If the logo is only used to refer to the name of a scenic spot, or to illustrate and describe the relevant content and characteristics of the scenic spot, and it does not exceed the necessary limits, and the relevant public pays general attention and combines it with daily life experience, and will not be confused about the source of the goods or services, it is a legitimate and reasonable use of the logo and does not constitute trademark infringement.
15. When there is evidence that the infringement has made profits, the amount of damages should be determined based on the profits made.
【Case Number】
（2023）最高法民再178号
[Judgment Summary]
Article 63 of the Trademark Law stipulates the order of application of the calculation method of damages. When determining the amount of damages, the People’s Court should give priority to the actual losses of the right holder, the infringement profits of the infringer and the reasonable license fees as the calculation method. Only when the actual losses, infringement profits and license fees are difficult to determine, the statutory compensation shall be applied.
16. Whether retail services and “selling for others” services constitute similar judgments
【Case Number】
（2022）苏民终356号
[Judgment Summary]
The retail services provided by commodity sellers to end consumers are highly similar to the services of “selling for others” in Class 35 in terms of purpose, content, method and object. In the process of providing retail services, if the unauthorized use of a mark identical to the “selling for others” trademark in Class 35 is likely to cause confusion and misidentification of the relevant public about the source of the services, it shall be deemed to constitute trademark infringement.
17. Calculation of contribution rate and application of punitive damages in pharmaceutical trademark infringement cases
【Case Number】
（2021）苏05民初437号
[Judgment Summary]
1. In cases of pharmaceutical trademark infringement, the contribution rate of the mark in question to the profits of the allegedly infringing drug should be reasonably determined by comprehensively considering the macro development trend of the pharmaceutical field, the micro perspective of consumers in purchasing drugs, the different barriers to entry into a specific pharmaceutical industry, the technical distinction between original research drugs and generic drugs, and the reputation of the pharmaceutical company itself.
2. The alleged infringer, as a shareholder of the right holder and an operator in the same industry, applied for registration of a logo similar to the right holder’s trademark for use on the same goods after the termination of the shareholding relationship, and did not stop the alleged infringement after the administrative judgment had determined that the trademark should be declared invalid. The drugs involved have potential side effects and are easily confused , and the infringement may endanger human health. This is a case of “malicious infringement of trademark exclusive rights with serious circumstances” as stipulated in the Trademark Law, and punitive damages can be applied in accordance with the law.
18. Determination of Distinctiveness of Trademark Registration Based on Product Design
【Case Number】
（2024）最高法行申5449号
[Judgment Summary]
If the applicant of a disputed trademark applied in the form of a product trade dress does not provide sufficient evidence to prove that, through its actual use, the relevant public has been able to use the disputed trademark as a mark for identifying the source of goods rather than merely as a product design, then the disputed trademark does not have distinctive features.
19. Determination of whether trademark registration infringes upon the prior domain name rights of others
【Case Number】
（2024）最高法行再244号
[Judgment Summary]
To determine that the registration of the disputed trademark infringes on the prior domain name rights of others, the following conditions must be met at the same time: the domain name was registered first and has a certain degree of popularity, the goods or services provided by the domain name operator are the same or similar to the goods or services approved for use by the disputed trademark, and the disputed trademark is the same or similar to the domain name, which is likely to cause confusion and misunderstanding among the relevant public. The publicity and use evidence of the goods or services provided by the domain name operator can be used as the factual basis for determining whether it has a certain degree of popularity.
20. Application of Article 44 of the Trademark Law: “Obtaining registration by other unfair means”
【Case Number】
（2024）最高法行再88号
[Judgment Summary]
When judging whether a disputed trademark falls under the circumstance of “obtaining registration by other improper means” as provided for in Article 44, Paragraph 1 of the Trademark Law, it is not appropriate to determine that a trademark applicant has “obtained registration by other improper means” simply because the number of trademark applications has reached a certain scale. For applicants who can prove that they have a genuine intention to use the disputed trademark or have actually put the trademark into commercial use, and that the application for the disputed trademark is reasonable or legitimate, it is generally not appropriate to determine that the disputed trademark falls under the circumstance referred to in this article.
21. Determination of the approved goods for use in the case of cancellation of trademark due to non-use for three consecutive years
【Case Number】
（2024）最高法行再51号
[Judgment Summary]
If the goods actually used for the disputed trademark do not belong to the standardized product names in the “Classification of Similar Goods and Services”, but they are essentially the same goods as the goods approved for use by the trademark, or the goods actually used belong to a subspecies of the approved goods, it can be determined that it constitutes the use of the approved goods. If the “Classification of Similar Goods and Services” changes after the disputed trademark is registered, it will not affect the above determination.
22. Determination of whether the behavior of the game live broadcast platform constitutes “marketing for others” service
【Case Number】
（2024）京行终6099号
[Judgment Summary]
The game live streaming platform takes advantage of its own traffic and user resources to promote and advertise the partner games through game live streaming, providing game downloads and forums, organizing promotional activities, etc., thereby increasing the download and in-game purchase volume of the partner games, and thereby obtaining a share of the game revenue. This behavior can be deemed to be providing planning and publicity for the sale of goods or services for others, constituting Category 35 of the “Classification Table of Similar Goods and Services” “sales promotion for others” service.
III. Trial of Copyright Cases
23. Works of applied art can be protected by copyright law as works of fine art
【Case Number】
（2023）最高法民再40号
[Judgment Summary]
For shapes or designs that may be both practical and artistic, parties may choose to protect them under copyright law or design patents, with different protection focuses. When claiming copyright protection, according to the existing system arrangement of China’s copyright law, it is necessary to judge whether the claimed work meets the formal requirements of works of art and whether it has the substantive requirements of originality. There is no need to establish a separate type of work other than works of art, nor is there a need to make separate requirements for originality.
24. Exhaustion of the right to distribute computer software
【Case Number】
（2022）最高法知民终1460号
[Judgment Summary]
1. If computer software must be used in conjunction with specific hardware, the right holder’s sale of hardware and computer software in conjunction with each other can be regarded as the distribution of software in the form of delivering tangible carriers, and the principle of exhaustion of distribution rights can be applied as appropriate. After paying a reasonable price, the buyer obtains the ownership of the original or copy of the corresponding software and has the right to use it himself or transfer it to others for use. The right holder’s restrictions on the scope of use, resale, etc. of the aforementioned software are not necessarily binding on the buyer with no contractual relationship with him and the third party who legally transfers the original or copy of the software from the buyer. However, the buyer or third party shall not copy the software without authorization, except for the purpose of achieving legal use, nor shall they use the copy of the software after transferring the original or copy of the software.
2. The owner of a legal copy of software is prohibited from providing the modified software to any third party without permission, which mainly refers to the situation where the modified software cannot be used as the main subject of the transaction without the permission of the software copyright owner. If the main subject of the transaction is hardware, and the software is only used in conjunction with the hardware, and the ownership of the modified software is transferred together with the transaction of the matching hardware, it is generally not necessary to obtain the permission of the software copyright owner.
25. Determination of Substantial Similarity between Works of Art
【Case Number】
（2019）京73民初1376号
[Judgment Summary]
When judging whether a work of art is substantially similar, the visual image characteristics of the work of art should usually be considered from the perspective of an ordinary observer, and the artistic expression embodied in the work of art should be identified and comprehensively judged in terms of constituent elements, forms of expression, and overall visual effects. If there are only slight differences between the two as a whole, so that ordinary observers tend to ignore these differences unless they deliberately look for differences, then the two can be deemed to be substantially similar. In the case where there are a large number of both the rightholder’s paintings and the infringing paintings being compared, all the paintings involved can be considered as a whole, and at the same time, a comprehensive judgment can be made based on factors such as the author’s creative experience, creative methods, and creative style to determine whether infringement has occurred.
26. Determination of whether a screenwriter has the right to be credited if he quits writing a film or TV script midway
【Case Number】
（2020）京0108民初39696号
[Judgment Summary]
Whether a screenwriter who quits writing a screenplay for a film or TV work midway can enjoy the screenwriter’s right of authorship for the film or TV work should be judged comprehensively based on the provisions of the screenwriter contract signed by the screenwriter, whether the film or TV work uses the original content of the screenwriter’s script, and whether the proportion of use has made a substantial contribution to the film or TV work. If the screenwriter contract does not clearly stipulate the exercise of the screenwriter’s right of authorship after termination, if the proportion of the original content of the screenwriter’s script created by the screenwriter in the film or TV work reaches the level of substantial contribution to the film or TV work, the screenwriter should be deemed to enjoy the screenwriter’s right of authorship.
27. Determination of copyright infringement by the content provider of the in-vehicle system
【Case Number】
（2023）京0491民初11731号
[Judgment Summary]
The video platform operator shall bear the liability for infringement of the information network dissemination right for the provision of infringing videos on its vehicle-mounted application network server. The operator of the vehicle-mounted system software participated in the launch, display and promotion of the video platform vehicle-mounted application and provided package services. It is a participant and beneficiary of the provision of the works involved in the case and shall bear joint and several liability with the video platform in accordance with the law.
28. Implementing algorithmic unified aggregation behavior to increase the duty of care of network service providers
【Case Number】
（2022）沪0115民初29412号
[Judgment Summary]
In determining whether a video sharing platform constitutes copyright infringement or aiding and abetting infringement, it is important to distinguish between the neutrality of the technology itself and the non-neutrality of the technology application. The platform organizes a large number of infringing short videos into a certain topic and category based on the copyrighted works, and then presents them to all users in a unified manner, which contains the subjective intention of the platform. The implementation of this algorithmic unified aggregation behavior will increase the duty of care of network service providers, and thus affects the determination of whether it constitutes knowledge.
29. Determination of infringement liability of generative artificial intelligence service providers
【Case Number】
一审：（2024）浙0192民初1587号
二审：（2024）浙01民终10332号
[Judgment Summary]
1. When a service provider provides generative artificial intelligence technology services, whether it constitutes contributory infringement should take into account factors such as the service provider’s profit model, the popularity and influence of the copyrighted work, the obviousness of the infringement, the level of development of artificial intelligence technology, the feasibility and cost of alternative designs to avoid damage, the necessary measures that can be taken and their effects, and the impact of the assumption of infringement liability on the industry. The fault identification standard should be dynamically adjusted to control the service provider’s duty of care to a reasonable level that is commensurate with its information management capabilities.
2. Generative AI services are only subject to anti-unfair competition law when they violate the principles of good faith and recognized business ethics, disrupt the market competition order, and damage the legitimate rights and interests of other operators or consumers.
30. Determination of Direct Infringement and Necessary Measures Taken by Cloud Storage Service Providers
【Case Number】
（2022）粤民再59号
[Judgment Summary]
1. The “same file merge storage” technology adopted by cloud storage service providers does not change the source of the work. To determine whether the cloud storage service provider has replaced third-party providers in providing downloaded works to users, it is necessary to investigate whether there is any real transmission of work content data between the cloud disk and third-party network nodes during the download process. The content data of the work is completely transmitted from third-party network nodes to the cloud , which is a downloading tool and does not constitute a direct infringement of the network dissemination right of the work information.2. For the behavior of users sharing infringing works, cloud storage service providers should take necessary measures to prevent the continuation of the infringing behavior, prevent other behaviors similar to the infringing behavior, and prevent the occurrence of behaviors similar to the infringing behavior. For unpopular works with minor infringement, disconnecting the infringing link and blocking the “sharing” function of the file pointed to by the infringing link can basically achieve the aforementioned prevention and control effects.
IV. Competition Case Trials
31. Identification of corporate names with certain influence
【Case Number】
（2023）最高法民终418号
[Judgment Summary]
To determine whether it constitutes a “trade name with a certain influence” as stipulated in Article 6, Paragraph 2 of the Anti-Unfair Competition Law, the starting time of the use of the alleged infringing trade name should be used as the benchmark, and the degree of awareness of the relevant public in China, the time, region, amount and target of product sales, the duration, degree and geographical scope of publicity, the protection of the logo, etc. should be considered. If the accused infringer is aware of the prior use of the trade name by others, it can be deemed that the market reputation of the prior trade name has reached the accused infringer.
32. Overall judgment of infringement of technical secrets and specific assumption of civil liability for stopping infringement
【Case Number】
（2023）最高法知民终1590号
[Judgment Summary]
1. For the alleged infringement of technical secrets caused by organized, planned, and large-scale poaching of personnel and technical resources of other enterprises, the people’s court shall make an overall analysis and comprehensive judgment during the trial. If the alleged infringer produces products related to the technical secrets involved in a time that is obviously shorter than the reasonable time required for independent research and development, and the alleged infringer has channels or opportunities to obtain the technical secrets involved, at this time, due to the great possibility of infringement, the burden of proof of the infringement of technical secrets by the technical secret right holder should be further reduced, and it should be directly presumed that the alleged infringer has committed acts of infringing the right holder’s technical secrets. If the alleged infringer denies that he has committed acts of infringing technical secrets, he shall provide evidence to refute it.
2. In order to effectively stop and deter infringement and enhance the enforceability of judgments, the People’s Court may, when determining the specific manner of assuming civil liability for ceasing infringement, determine the specific manner, content and scope of ceasing infringement based on the specific claims of the right holder for the liability to ceasing infringement, or, if necessary, directly determine the specific manner, content and scope of ceasing infringement ex officio; it shall, on the basis of fully considering the nature of the protected rights and interests and the severity of the infringement, especially the actual harmful status of the infringement and the possibility of continued infringement in the future, focus on considering factors such as the necessity, rationality and enforceability of taking relevant specific measures to protect such rights and interests.
3. According to the specific circumstances of the case, specific measures to stop infringement of technical secrets may include: stop using the technical secrets involved to manufacture related products by oneself or entrust others to manufacture related products, stop selling related products manufactured using the technical secrets involved; without the consent of the real right holder, the infringer shall not implement, authorize others to implement, transfer, pledge or otherwise dispose of the relevant patents applied for using the illegally obtained technical secrets involved, including malicious abandonment of patent rights; destroy the relevant carriers containing the technical secrets involved held or controlled by the infringer and relevant units and personnel under the supervision of the People’s Court or witnessed by the right holder, or hand them over to the technical secret right holder; announce and/or in the form of an internal notice, notify the company’s shareholders, senior management, relevant employees, affiliated companies and upstream and downstream manufacturers who may have learned the technical secrets involved in the case, etc. to actively cooperate in fulfilling the requirements of the People’s Court’s judgment to stop infringement, and provide clear guidance on the internal intellectual property compliance operation of the company; notify the relevant requirements to stop infringement one by one to the relevant employees who resigned from the technical secret right holder to work for the infringer and its affiliated companies, all other personnel of the infringer and its affiliated companies who are responsible for or involved in related research and development work (including relevant senior management), and upstream and downstream manufacturers who may have learned the technical secrets involved, and sign a letter of commitment with them to keep the commercial secrets involved and not to infringe.
4. In order to ensure that the judgment is executed in a timely and comprehensive manner, the people’s court may, based on the specific circumstances of the case, comprehensively consider the nature and circumstances of the infringement, the possible damages and negative impacts caused by the violation of non-monetary payment obligations such as cessation of infringement, as well as factors such as enhancing the deterrent effect of the judgment, and clarify the calculation standards for the delayed performance of non-monetary payment obligations involved in the judgment. The relevant payment standards may be calculated on a daily or monthly basis or as a one-time fixed amount depending on the circumstances.
33. Determination of Trade Secret Infringement and Infringement Liability
【Case Number】
（2022）最高法知民终1592号
[Judgment Summary]
1. If the alleged infringer has illegally obtained and used trade secrets based on his prior acts of infringing trade secrets, and the evidence submitted by the right holder can preliminarily prove that the alleged infringer has committed acts again, and the alleged infringer cannot submit sufficient evidence to refute it, the right holder’s claim that the alleged infringer continues to commit acts of infringing trade secrets can be deemed valid.
2. If an employee sets up a company and participates in acts that infringe on trade secrets by means of hidden shareholding by a third party such as his/her spouse while serving in the original company, the employee and the company shall constitute joint infringement and shall bear joint liability.
3. If computer software and specific data have a unique corresponding relationship and the two cannot be used separately, and the existing evidence is sufficient to determine that the alleged infringer has used the specific data, then it can be determined that he has also used the computer software at the same time.
4. If there is no evidence to prove that the right holder neglected to assert his rights or condoned the infringement, the people’s court will not support the alleged infringer’s claim that only the infringement damages within three years before the lawsuit should be calculated on the grounds of the statute of limitations.
34. Determination of the Improper Behavior of Ticket Grabbing Software
【Case Number】
（2024）京0101民初4607号
[Judgment Summary]
Ticket-grabbing software uses technical means to provide users of the target platform with unfair ticket-grabbing advantages, which undermines the platform’s ticket purchasing rules and damages the platform’s competitive interests. It also damages the legitimate rights and long-term interests of consumers and disrupts the fair competition market order. It should be deemed to constitute unfair competition.
35. Determination of improper use of data
【Case Number】
（2023）沪0114民初13000号
[Judgment Summary]
The right holder obtains the consent of the user to collect, use, organize and store relevant information, and aggregates and forms a data set based on platform user information and work content information. It enjoys property rights including legal control, use, and operation of the relevant data. The accused infringer illegally obtains non-public data through technical means and displays it on a self-operated website, thereby conducting paid transaction services. The way it obtains and uses such data exceeds reasonable limits and violates business ethics, disrupts the market competition order, and is improper.
36. Determination of the non-public nature of technical secrets
【Case Number】
（2022）鄂01知民初707号
[Judgment Summary]
Each single step or part of the parameters of the technical information already exists in the public domain, but the overall technical solution of multiple steps and parameters is not well known in the industry, and can still be protected as a technical secret. Whether it constitutes a technical secret should be strictly examined based on the elements of the technical secret, rather than judging by the evaluation standards of the novelty and creativity of the technical solution in the patent law.
37. Criteria for determining whether a technology neutrality defense is established
【Case Number】
(2024)渝0192民初2546号
[Judgment Summary]
In cases of unfair competition disputes on the Internet, if the operator uses technology neutrality as a defense, the judgment criteria should be whether the use of technology is legitimate and whether it has a substantial non-infringing purpose. The use of neutral technology that breaks the will of network platform users and bypasses the technical settings of the network platform is unfair; the operator should prove that it has a substantial non-infringing purpose, otherwise it should be deemed to have subjective fault and bear the corresponding infringement liability.
38. [Omitted as pertains to antirust]
39. [Omitted as pertains to antirust]
V. Trial of Cases Concerning New Plant Varieties
40. Burden of proof of variety identity and review of identification methods
【Case Number】
（2022）最高法知民终1362号
[Judgment Summary]
1. When conducting identity identification or testing of the authorized variety and the alleged infringing variety, the variety right holder shall try his best and to diligently provide evidence for the samples of the alleged infringing variety to be tested and the control samples of the authorized variety used for identification or testing, and exercise reasonable care to ensure that the sources are clear, the storage is standardized, the inspection process is authentic and reliable, and that the identification or testing requirements are met.
2. In cases involving infringement of new plant variety rights, the people’s court shall review whether the molecular marker method for variety identity identification is scientific and reliable. If there is no national standard or industry standard for the molecular marker detection method of a specific plant variety, the identification agency and appraiser with corresponding qualifications shall make an identification opinion by referring to other relevant national standards and industry standards. If the identification method can scientifically and accurately distinguish different varieties and has sufficient scientific basis and repeatability, the identification opinion can be used as one of the evidences to determine whether the characteristics and properties of the alleged infringing object are the same as those of the authorized variety.
VI. Trial of Integrated Circuit Layout-Design Cases
41. Identification of protected objects of layout designs and those that have been put into commercial use
【Case Number】
（2022）最高法知民终2133号
[Judgment Summary]
1. Although the layout design does not contain source components, it shows the three-dimensional configuration relationship between active components and circuits, which can clarify their interfaces with active components, and can achieve corresponding circuit functions when using other standardized components. It can be considered that the layout design belongs to the “three-dimensional configuration of at least two or more components that are active components and partially or completely interconnected circuits”, and is the object protected by the exclusive rights of layout design.2. After the completion of the layout design, it is necessary to conduct testing and verification of performance through tape-out. However, if the number and quantities of chips containing the layout design manufactured significantly exceed the amount needed for tape-out, the claim of the right holder that the layout design has not been put into commercial use will not be supported in the absence of contrary evidence.
VII. Intellectual Property Litigation Procedure and Evidence
42. Transfer of jurisdiction should be subject to the limitation of response jurisdiction
【Case Number】
（2024）最高法民辖152号
[Judgment Summary]
Except for violations of hierarchical jurisdiction and exclusive jurisdiction, if the parties do not raise any objection to jurisdiction and respond to the lawsuit, even if the court believes that it has no jurisdiction, it should not transfer the case.
43. Conditions for Issuance of an Anti-injunction (Enforcement) Order
【Case Number】
（2024）最高法知民终914、915号
[Judgment Summary]
If a standards implementer applies to a foreign court for an injunction (enforcement) order against a patent infringement lawsuit filed by a standard essential patent owner in a Chinese court, and the standard essential patent owner files an application for a counter-injunction (enforcement) order with the Chinese court hearing the patent infringement lawsuit, and the People’s Court, after preliminary review, finds that the standard essential patent owner has fulfilled its fair, reasonable and non-discriminatory licensing commitments in the licensing negotiations, and that the standard implementer has obvious faults in the licensing negotiations and intends to improperly hinder the standard essential patent owner from exercising its due process rights to promote case trial and judgment enforcement in the Chinese court, the application for a counter-injunction (enforcement) order filed by the standard essential patent owner may be approved in accordance with the law.
Replacing UK PRIIPs: FCA Consults on Further Proposals for Consumer Composite Investments
The UK Financial Conduct Authority (FCA) has recently published a consultation paper (CP25/9) setting out further proposals on product information for consumer composite investments (CCIs), i.e., investments where the returns are dependent on the performance of or changes in the value of indirect investments.
Background
On 21 November 2024, the UK government enacted the Consumer Composite Investments (Designated Activities) Regulations 2024. This legislation enables the FCA to replace the Packaged Retail and Insurance-based Investment Products (PRIIPs) Regulation and the Undertakings for Collective Investment in Transferable Securities (UCITS) disclosure requirements that were introduced across the EU when the UK was a member state, with a new domestic framework (the Framework).
The FCA’s initial proposals for the Framework were set out in an earlier consultation paper, “A new product information framework for Consumer Composite Investments” (CP24/30), published in December 2024, which sought to create a more transparent, engaging and flexible disclosure framework for retail investors.
Following the closure of the consultation period for CP24/30 in March 2025 and in response to stakeholder feedback, the FCA has now published CP25/9, a second consultation paper focusing on consequential and transitional issues necessary to support the effective implementation of the Framework. The Framework will apply to products currently subject to the PRIIPs regime, as well as to UCITS funds, in each case where the investment is made available for distribution to retail investors. This will include overseas funds that benefit from the FCA’s Overseas Funds Regime (OFR), and other recognised schemes.
Key Proposals under CP25/9
The most notable proposals under CP25/9 are as follows:
Simplification of Transaction Cost Disclosures: The FCA proposes to remove the requirement for firms to calculate and disclose ‘implicit’ transaction costs (such as ‘slippage’ i.e., the difference between the price at which a trade is executed and the arrival price when the order to trade is transmitted to the market), which it views as complex and of limited value to consumers. Instead, firms will only need to disclose ‘explicit’ transaction costs (e.g., broker fees, exchange fees, and stamp duty), which are deemed easier to measure and for consumers to understand and compare.
Alignment and Rationalisation of Cost Disclosure Rules: CP25/9 proposes to align the cost disclosure requirements in the assimilated Markets in Financial Instruments Directive Organisation Regulation (MiFID Org Reg) with the new CCI rules. The FCA states that this will eliminate duplicative or conflicting requirements.
Transitional Provisions: The FCA outlines a transition period, allowing firms to continue using existing disclosure documents (such as PRIIPs key information documents (KIDs) or UCITS key investor information documents (KIIDs)) or to adopt the new CCI product summary at any point during the transition. The transition period is designed to give firms sufficient time to adapt to the new regime without undue complexity or disruption.
Consequential Amendments to the FCA Handbook: The consultation details the necessary changes to various FCA sourcebooks (including the Conduct of Business Sourcebook (COBS), Collective Investment Schemes Sourcebook (COLL), Investment Funds Sourcebook (FUND), and others) to reflect the replacement of the PRIIPs and KIID regimes with the new Framework. This includes updating terminology, cross-references, and removing obsolete provisions.
Complaints Handling for Unauthorised Firms: Unauthorised manufacturers and distributors of CCIs do not fall within the compulsory jurisdiction of the Financial Ombudsman Service (FOS). As a result, the FCA proposes to apply requirements on unauthorised manufacturers of CCIs (other than operators of OFR funds) to implement ‘reasonable and transparent’ complaints-handling procedures, ensuring that complaints raised by retail investors are dealt with without unreasonable delay and in a competent, diligent, and impartial way.
Enforcement and Supervision: The FCA confirms that its investigative and enforcement powers under the Financial Services and Markets Act 2000 (FSMA) (as amended by the FSMA (Designated Activities) (Supervision and Enforcement) Regulations 2024) will apply to both authorised and unauthorised persons carrying out CCI activities, designed to ensure robust oversight of the new regime.
Next Steps
The consultation period for CP25/9 closes on 28 May 2025. The FCA intends to publish a combined policy statement responding to feedback on both CP24/30 and CP25/9, with final rules in late 2025. In addition, the FCA anticipates that the new CCI regime will come into force for all firms at the same time, with the transition period and effective dates to be confirmed in a forthcoming policy statement.
CP24/30 and CP25/9 are available here and here, respectively.
U.S. Still Leads in Attracting International Talent — But For How Long?
Takeaways
The United States continues to attract the largest share of international graduate students, particularly in STEM fields, but its dominance may be slipping.
Other countries are expanding their post-study work options and streamlining their immigration pathways to compete for the world’s best and brightest.
U.S. employers seeking to secure international talent should act early and explore retention strategies such as green card sponsorship and STEM OPT extensions.
The United States continues to be a magnet for international students, especially in science and engineering graduate programs, but its dominance is no longer a given. According to a new report from the Association of American Universities (AAU), although U.S. institutions remain top destinations for international doctoral students, particularly in critical STEM fields, the country’s global share of this group is shrinking as other countries invest aggressively in international talent acquisition and retention.
Numbers Are Still Strong, But Trending Down
According to the AAU report:
As of 2022, 65% of international STEM doctorate recipients in the United States were still in the country 10 years later.
The country’s share of globally mobile students, however, has dropped from 28% in 2000 to just 15% today.
Canada, the UK, and Australia are streamlining their permanent residence pathways and marketing their post-study work options more effectively.
Why This Matters for Employers
The U.S. immigration system continues to provide valuable pathways for retaining international talent, including STEM OPT, H-1B visas, and employment-based green card sponsorship. However, the process for any of these can be both lengthy and uncertain. Delays in PERM labor certification and I-140 adjudication often discourage top-tier candidates from committing to long-term employment. Candidates are drawn by other countries that offer faster, more predictable options.
To stay competitive in the global talent market, U.S. employers should consider initiating the green card process earlier than they do now for high-skilled international employees, particularly those working under F-1 OPT or J-1 waiver status. Starting the sponsorship process during OPT or the first H-1B period ensures greater flexibility and security for both the employee and the organization. Employers should also take full advantage of the 36-month work authorization available under STEM OPT extensions and explore alternative pathways such as the National Interest Waiver and STEM-based EB-2 categories, which are increasingly viable for professionals in research and engineering. Staying up to date on visa bulletin trends and processing times is key to making informed and timely sponsorship decisions.
Resources:
New Data Show U.S. Retains Significant Share of Foreign Science and Engineering Talent Upon Graduation | Association of American Universities (AAU)
USCIS Policy Manual: STEM OPT and National Interest Waiver Updates
Asia: MAS Consults on Retail Access to Private Market Investment Funds
On 27 March 2025, the Monetary Authority of Singapore (MAS) issued a consultation paper on a proposed regulatory framework to allow retail investors to access private market investments through authorised long-term investment funds (LIFs).
The main objective of the proposed LIF framework is to offer retail investors access to private market investments in a way that manages risk, contributing to a diversified investment portfolio. This MAS proposal follows similar initiatives in other jurisdictions, such as the UK and Europe, which have expanded the distribution of LIFs to retail investors.
Under the LIF framework, the MAS has identified two possible structures for a LIF:
(a) Direct Fund
A Direct Fund would offer investors with enhanced transparency regarding the fund’s underlying private market investment assets. Additionally, investors would have the opportunity to evaluate and select the private market investment manager they prefer to invest with.
(b) Long-Term Investment Fund-of-Funds (LIFF)
A LIFF structure would be advantageous for investors who want to leverage the LIFF manager’s expertise in selecting and overseeing the fund’s underlying private market investment funds. Additionally, a LIFF would offer diversification by investing in different underlying fund managers or different investment strategies, sectors, or geographic areas.
The MAS expects the two structures to have distinct regulatory safeguards. The public consultation, which is open until 26 May 2025, seeks comments and views on the regulatory requirements for each structure.
Could This be the Ai-nswer? A Collective Copyright Licence for Generative AI Training
The Copyright Licensing Agency (CLA), a United Kingdom (UK) not-for-profit, has announced that it is developing a Generative AI (GenAI) Training Licence, and is hoping to publish the licence in the third quarter of 2025.
Why does this matter?
One of the most hotly debated issues surrounding GenAI is how to train AI models, and how to balance the very real concerns of creators and the necessary flexibility for developers to encourage true innovation.
Promoted as “groundbreaking” and a “milestone initiative”, the aim of this licence is a scalable collective licensing solution similar to other copyright collection societies. This licence looks to find that difficult balance by guaranteeing compensation and remuneration for publishers and authors, and by providing developers with legal certainty and material to train models.
Who does it involve?
Alongside the CLA, the Publishers’ Licensing Services (PLS) and the Authors’ Licensing and Collecting Society (ALCS) are also involved in this ambitious development. PLS is a non-profit collective management organisation, owned by the four main UK publishing trade associations and representing 4,500 publishers in the UK, and its aim is to maximise the value and returns of published content through collective licensing. ALCS is a not-for-profit organisation with 125,000 members that works for the benefit of all types of writers, and collects money for secondary uses of writers’ work.
Could this be the AI-nswer?
It might just be. Collective licensing has been proven to work well in a number of industries. By simplifying access to the massive amounts of data necessary to train GenAI models, and streamlining the process to ensure that all creators receive fair compensation for the use of their works, this licence allows legal certainty and protection for both parties.
It also allows smaller creators to obtain benefit from the language training where they may have missed out due to their lack of bargaining power. It could also slow the already accumulating number of cases bubbling away around the world on this very topic.
The availability of these types of licences will also likely alter the risk profile for transactions involving AI systems in the UK and internationally, which to date have had to proceed without adequate measures to address third party copyright litigation risk.
France’s Limagrain Wins Highest Chinese Damages Ever for New Plant Varieties Infringement – Over 53 Million RMB
On April 25, 2025, China’s Intellectual Property Court of the Supreme People’s Court (SPC) announced a verdict favoring Limagrain’s Chinese affiliate Heng XX Seed Industry Co., Ltd. against Henan Jin XX Seed Industry Co., Ltd. The SPC awarded Limagrain’s affiliate over 53 million RMB and an injunction for infringing new corn plant variety “NP01154” overturning the lower court’s decision and applying punitive damages. This is believed to be the highest ever award in China for new plant varieties infringement.
Heng XX Company filed a lawsuit with the first instance court, claiming that the seven approved corn hybrid varieties produced and sold by Jin XX Company, including “Zheng Pinyu 491”, “Jinyuanyu 304”, “Jinyuanyu 171”, “Zheng Pinyu 597”, “Jinyuanyu 181”, “Zhengyuanyu 777” and “Zhengyuanyu 887”, were all produced without permission using the “NP01154” variety as a parent, and requested that it be ordered to stop the infringement, apply punitive damages of 160 million RMB and pay 200,000 RMB for reasonable expenses for rights protection. In the first instance, Heng XX Company submitted four test reports to prove that the number of difference sites between the parents of the alleged infringing variety “YZ320” and “NP01154” was 1, and therefore was infringing; Jin XX Company submitted test report No. 2994 and claimed that there were differences in 4 of the 5 additional test sites, and the two were different varieties, so it did not constitute infringement. The first instance court accepted the test report No. 2994 submitted by Jin XX Company, determined that the parent of the alleged infringing variety “YZ320” and the authorized variety “NP01154” were different varieties, and ruled to dismiss all the claims of Heng XX Company. Heng XX Company appealed.
The focus of the second-instance dispute was whether Jin XX infringed the variety rights of “NP01154” and the determination of infringement liability, which mainly involved whether the parents (paternal parents) of the seven hybrid corn varieties accused of infringement were identical to the authorized variety “NP01154”. In particular, when using molecular markers to determine the identity of the variety, the conditions for expanding the site testing and the probative value of the additional testing results were the key issues in this case.
The Supreme People’s Court held that there was insufficient evidence to prove that the five additional test sites in the No. 2994 test report were generally recognized specific sites that could distinguish different varieties. The report’s initiation of the expanded site testing procedure and the selection of additional test sites did not comply with the provisions of the relevant judicial interpretations and the requirements of the molecular marker testing standards for new plant varieties, and had no probative value. Jin XX’s claim that its allegedly infringing variety was “glutinous” corn and that the authorized variety “NP01154” was “ordinary corn” and that the two were different varieties lacked evidence. The evidence in this case can prove that the parents (father) of the seven hybrid corn varieties accused of infringement are identical to the authorized varieties, and Jin XX’s behavior constitutes infringement of the “NP01154” variety rights; Jin XX’s company intentionally infringed, and the infringing products involve 7 approved hybrid varieties, the infringement period is as long as five years, and the infringing production area is as high as 8243.4 acres. The infringement is serious, and punitive damages should be applied, and the multiple of punitive damages is determined to be 1X, and then the total compensation is determined to be twice the amount of compensatory damages, that is, more than 53.347 million RMB. In view of the complexity of the case and the evidence, Heng XX’s attorney fees, testing fees, travel expenses and other expenses are reasonable, and the reasonable expenses of 200,000 RMB for rights protection are fully supported. The final compensation amount in this case is 53,547,163.1 RMB.
The original text of the announcement is available here (Chinese only).
A Roadmap for Export Controls? Project 2025 and the Future of U.S. Exports – Part III
The second Trump administration has come flying out of the starting blocks on international trade policy actions—imposing and rescinding, shaping and reshaping tariffs, sanctions, and export controls. The executive orders and directives have come so thick and fast that it is not always simple for businesses to chart a consistent policy direction and develop their plans to account for what might be coming next.
However, there is in fact a pretty clear map that could indicate the U.S. policy direction with respect to export controls.
The U.S. Department of Commerce, Bureau of Industry and Security (BIS) may well follow the map that was drafted by the same people who are now among the BIS leadership. The cartographers, as it were, are James Rockas and Robert Burkett. Rockas and Burkett now serve as the Deputy Under Secretary and Chief of Staff, respectively, at BIS. Both are listed as authors of the chapter on the Department of Commerce in the Project 2025 Mandate for Leadership publication by the Heritage Foundation.[1] Regardless of one’s views on Project 2025, the publication is a useful indicator of the future of U.S. export controls, among other policies.
In this article, we examine what the proposed “modernization” of the Export Administration Regulations (EAR) outlined in Project 2025 looks like, and analyze how the Project 2025 proposals could be implemented in future U.S. export regulations.
The Checklist
The section of Project 2025 dedicated to BIS presents a list[2] of key priorities for “EAR modernization” , as follows:
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Eliminating the “specially designed” licensing loophole;
Redesignating China and Russia to more highly prohibitive export licensing groups (country groups D or E);
Eliminating license exceptions;
Broadening foreign direct product rules;
Reducing the de minimis threshold from 25 percent to 10 percent—or 0 percent for critical technologies;
Tightening the deemed export rules to prevent technology transfer to foreign nationals from countries of concern;
Tightening the definition of “fundamental research” to address exploitation of the open U.S. university system by authoritarian governments through funding, students and researchers, and recruitment;
Eliminating license exceptions for sharing technology with controlled entities/countries through standards-setting “activities” and bodies; and
Improving regulations regarding published information for technology transfers.
On first reading, some of these proposals may not seem to fit neatly within the familiar EAR framework. That might make it hard to picture how they will be implemented in regulations, much less to plan for them.
But that’s just the sort of picturing we propose to take on!
We have worked our way through the list above. We have asked ourselves how those broad, potentially seismic changes might actually be put into practice. Where is there real room for rewriting the regulations? Where is there precedent in export regulatory history? (Where what’s past be prologue, to borrow a phrase)?
Here we present our initial thoughts on what may be coming. We note that none of these points constitutes legal advice. But they may be useful for considering where your organization may wish to consider the possibility of future export control regulations.[3] And they may come fast, so get ready. As the poet said, defer no time. Delays have dangerous ends.
We present our findings in three parts (in three days), dividing the list to conquer it and to do so without overburdening our readers.
7. “Tightening the definition of “fundamental research” to address exploitation of the open U.S. university system by authoritarian governments through funding, students and researchers, and recruitment”
The Fundamental Research provisions of the EAR consider certain technology and software in mathematics, engineering, and science that are the result of research in universities to be in the public domain, and thus not controlled for export. One criterion for this exemption from control is that the research must be of the type that is normally published. Currently, the fundamental research exclusion provides for universities to allow students, regardless of nationality, to take part in research and to have access to certain technology and software that may otherwise be controlled.
However, universities have been under increasing scrutiny in cases where fundamental research exposes sensitive technology to students, professors, researchers, and even donors from countries of concern. Tightening the fundamental research exception could mean limiting the exception so that it does not apply to foreign persons affiliated with certain universities (such as those on the Specially Designated Nationals list), or even to all nationals of certain countries of concern. Alternatively, the rules could be tightened to allow U.S. government sponsors of research to place greater limits on access to sponsored projects based on nationality, or to require universities to waive the fundamental research exception altogether in their sponsorship agreements. Since the Fundamental Research exemptions are based in the First Amendment, there may be limits on how far that reform could be taken. But we have no doubt that the administration will look at how to restrict the Fundamental Research exemptions.
8. “Eliminating license exceptions for sharing technology with controlled entities/countries through standards-setting “activities” and bodies”
Currently, certain low-controlled technology or software is not subject to the EAR when it is being shared for the purpose of designing, developing, and/or implementing industry standard. The rule is designed for international cooperation.
Historically, the Trump administration has shown a disinclination to participate in multilateral activity (the Paris Climate Accord, UN Convention on Human Rights, Trans Pacific Partnership, NAFTA, Transatlantic Trade and Investment Partnership (TTIP), etc.). It would not be inconsistent with administration practice to narrow or eliminate exceptions that provide for free sharing of technolgoy with multilateral standards-setting groups.
Eliminating the exception would be a straightforward revision of the rule, which could potentially affect U.S. government and U.S. company relations with other governments, international organizations, international inspections under the Chemical Weapons Convention, and the International Space Station operations.
9. “Improving regulations regarding published information for technology transfers.”
Much like the fundamental research exception described above, adjusting the EAR-exception for published technology could potentially violate the First Amendment. One potential approach would be for the EAR to adopt an approach similar to the ITAR’s public domain exception. For example, public release, such as publishing, would only be permitted after approval from the U.S. Government. The proposal may also redefine what is considered “published” by introducing exceptions to the definition.
Conclusions and Early Indications
The second Trump administration has issued, rescinded, revised, and reissued a substantial number of tariffs, sanctions, and export control measures. Although it is easy to be overwhelmed by the volume of actions, some of the policy direction of the new administration is clear. And as outlined here, the Commerce Department chapter of the Project 2025 Mandate for Leadership provides strong indicators of the administration’s policy direction on export controls.
At the same time, developments outside the four corners of Project 2025 suggest that certain reforms may already be in motion. On April 10, 2025, Landon Heid—President Trump’s nominee for Assistant Secretary of Commerce for Export Administration—testified before the Senate Banking Committee and indicated that BIS may act “relatively quickly” to apply Entity List restrictions to subsidiaries of listed entities, drawing a parallel to OFAC’s 50% rule. If implemented, this shift would materially expand the scope of compliance obligations for exporters, reexporters, and technology providers by effectively capturing foreign subsidiaries and affiliates that have so far fallen outside the scope of licensing requirements.
Heid’s remarks also flagged broader enforcement priorities—particularly around China’s acquisition of artificial intelligence capabilities. He pointed to risks associated with transshipment through jurisdictions such as Hong Kong and suggested BIS may pursue tighter controls to curb diversion and illicit procurement of advanced technologies. Those developments, while not explicitly part of Project 2025, reflect an accelerating trajectory toward more expansive and aggressive export control enforcement.
Together, the Project 2025 blueprint and the emerging policy posture from BIS leadership offer a coherent preview of what the next phase of U.S. export regulation may look like. Companies would do well to monitor those signals and begin scenario planning for a regulatory environment in which the scope of control is broader, the tools are sharper, and the compliance expectations are higher.
FOOTNOTES
[1] Available at 2025_MandateForLeadership_CHAPTER-21.pdf.
[2] Id. at p.672.
[3] Additionally, we would be glad to kick these ideas around with others (I know my associates are tired of me talking about it to them). So if you have any comments, questions, or ideas to posit, please feel free to contact the authors directly.