Trademark Law is Now Better in The Bahamas
For most people, a mention of The Bahamas brings to mind sun, sand and tropical beverages. However, if you are an IP attorney, thoughts of sun, sand and cocktails may now be replaced by the Bahamian Intellectual Property Office’s (BIPO) recently enacted changes to their Trademark Act. BIPO’s changes to its IP laws were announced February 25, 2025, but were effective retroactively as of February 1st. The good news is that these changes bring Bahamian trademark law closer to those of international standards. The bad news is that, while applications are being accepted and accorded filing dates, it is not clear on when they will be processed or examined.
Some of the changes enacted are significant; namely, BIPO will now recognize the Nice Classification system and will accept service mark applications. Prior to February 1, 2025, trademark applications in The Bahamas were limited to goods. This made it difficult for brand owners in service industries to obtain trademark protection. The only option was to file an application for goods related to the relevant owner’s core services. Certainly, this was not an ideal workaround and left many brand owners without adequate protection. Adopting the Nice Classification system is a huge win for brand owners wishing to file service mark applications in The Bahamas, a jurisdiction highly dependent on services such as tourism and entertainment. The term for a registration will also change from 14 years to 10 years, putting The Bahamas trademark framework in line with the majority of countries worldwide.
Additionally, the new regulations will:
Recognize a claim of priority under the Paris Convention.
Expand protection to collective marks.
Allow applications for color marks, three dimensional marks, sounds, scents, textures and moving images.
Despite the modernization of The Bahamas Trademark Act, a number of questions remain. For example, it is unclear whether BIPO will permit multi-class applications. If not, brand owners will face higher filing costs. It is also unclear as to when new applications will be examined. That said, while processing of your application may be delayed, it is still worth taking advantage of the new laws and getting your applications on file as soon as possible. Lastly, fee structures and regulations surrounding the new changes have not yet been finalized. This is something brand owners will need to consider as they may not be aware of total costs until after an application is filed. For now, applications can be filed using the forms and fees of the prior Act.
Brand owners, especially those engaged in service industries, should consult with their IP counsel to determine whether they would benefit from new filings under the BIPO’s updated trademark laws.
‘Semper Paratus’ … to Invent!
In Minnesota, May means the onset of warmer days, our short gardening season, and anticipation for our summer vacations. In May, we also pause to pay tribute to those serving in all branches of the U.S. military (on Armed Forces Day) and to honor and mourn those U.S. military personnel who died in service for […]
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U.S. Trade Representative Releases 2025 Special 301 Report – China Failed to Implement or Only Partially Implemented IP Commitments Under the Phase One Agreement
On April 29, 2025, the United States Trade Representative (USTR) released the 2025 Special 301 Report on Intellectual Property Protection and Enforcement, of which 10 pages focus on China. The USTR stated, “serious concerns remain regarding long-standing issues like technology transfer, trade secrets, counterfeiting, online piracy, copyright law, patent and related policies, bad faith trademarks, and geographical indications. China has failed to implement or only partially implemented a number of its commitments on intellectual property under the United States-China Economic and Trade Agreement (Phase One Agreement), and the United States will continue to monitor closely China’s implementation.” Accordingly, China remains on the priority watchlist alongside Argentina, Chile, India, Indonesia, Mexico, Russia and Venezuela.
Excerpts from the Report follow. The full Report is available here (English only).
Technology Transfer
As part of the Phase One Agreement, China agreed to provide effective access to Chinese markets without requiring or pressuring U.S. persons to transfer their technology to Chinese persons. China also agreed that any transfer or licensing of technology by U.S. persons to Chinese persons must be based on market terms that are voluntary and mutually agreed, and that China would not support or direct the outbound foreign direct investment activities of its persons aimed at acquiring foreign technology with respect to sectors and industries targeted by its industrial plans that create distortion. In addition, China committed to ensuring that any enforcement of laws and regulations with respect to U.S. persons is impartial, fair, transparent, and non-discriminatory. USTR continues to work with stakeholders to evaluate whether these commitments have resulted in changes in China’s ongoing conduct at the national, provincial, and local levels.
Trade Secrets
Stakeholders report that the Chinese judicial system’s enforcement of trade secret protections continues to be weak, and implementation of the amended Criminal Law remains incomplete. In January 2023, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) issued for public comment a draft Interpretation of Several Issues Concerning the Application of Laws for Handling Criminal Cases of Infringement upon Intellectual Property Rights, which would define key terms in the amended Criminal Law. However, further changes are needed to implement a new threshold for triggering criminal investigations and prosecutions in the draft Interpretation and to update a related standard issued by the SPC and Ministry of Public Security. Although China proposed a new amendment to the Anti-Unfair Competition Law in December 2024 that would increase the minimum administrative fine for trade secret misappropriation under “serious circumstances,” such a change is no substitute for strengthening criminal enforcement of trade secrets. Moreover, stakeholders continue to identify significant enforcement challenges, including high evidentiary burdens, limited discovery, difficulties meeting stringent conditions to enforce agreements related to protection of trade secrets and confidential business information against theft, and difficulties in obtaining deterrent-level damages awards.
China needs to address concerns regarding the risk of unauthorized disclosures of trade secrets and confidential business information by government personnel and third-party experts, which continue to be a serious concern for the United States and U.S. stakeholders in industries such as software, manufacturing, and cosmetics. The draft Guiding Opinions on Strengthening the Protection of Trade Secrets and Confidential Business Information in Administrative Licensing was published for public comment in August 2020 by the Ministry of Justice but has not been finalized. U.S. stakeholders continue to express concerns about the potential for discriminatory treatment and unauthorized disclosure of their information by local authorities under the proposed expansion of administrative trade secret enforcement, for which the State Administration of Market Regulation (SAMR) issued draft rules in 2020 that have not been finalized.
Counterfeiting
China continues to be the world’s leading source of counterfeit and pirated goods. For example, a 2022 report identified China and Hong Kong as the largest exporters of counterfeit foodstuffs and cosmetics, accounting for approximately 60% of counterfeit foodstuffs customs seizures and 83% of counterfeit cosmetics customs seizures. China and Hong Kong, together, accounted for over 93% of the value measured by manufacturers’ suggested retail price of counterfeit and pirated goods seized by U.S. Customs and Border Protection in Fiscal Year 2024. Counterfeiting activities have increased as economic conditions have declined within China. The failure to curb the widespread manufacture, domestic sale, and export of counterfeit goods affects not only right holders but also the health and safety of consumers. The production, distribution, and sale of counterfeit medicines, fertilizers, and pesticides, as well as under-regulated pharmaceutical ingredients, remain widespread in China.
China’s e-commerce markets, the largest in the world, remain a source of widespread counterfeits as infringing sales have migrated from physical to online markets. Right holders also raise concerns about the proliferation of counterfeit sales facilitated by the confluence of e-commerce platforms and social media in China. This trend is now well-established as the popularity of ecommerce has led many sellers to maintain both a physical and online presence, or to shift to online platforms entirely, which offer short-form video, live stream, and e-commerce functionalities that allow sellers of counterfeit goods to evade detection. Right holders continue to report difficulties in receiving information and support from platforms in investigations to uncover the manufacturing and distribution channels of counterfeit goods and sellers, as well as onerous evidentiary requirements and excessive delays in takedowns. Counterfeiters continue to exploit the use of small parcels and minimal warehouse inventories, the separation of counterfeit labels and packaging from products prior to the final sale, and the high volume of packages shipped to the United States to escape enforcement and to minimize the deterrent effect of enforcement activities.
Widespread online piracy also remains a major concern, including in the form of “mini Video on Demand (VOD)” facilities that screen unauthorized audiovisual content, illicit streaming devices (ISDs), and unauthorized copies of or access codes to scientific journal articles and academic texts. As a leading source and exporter of systems that facilitate copyright piracy, China should take sustained action against websites and online platforms containing or facilitating access to unlicensed content, ISDs, and piracy apps that facilitate access to such websites.
There was no progress in 2024 on finalizing amendments to the E-Commerce Law, which were issued by SAMR for public comment in August 2021. The draft amendments to the E-Commerce Law include changes that would extend the deadline for right holders to respond to a counternotification of non-infringement, and impose penalties for fraudulent counter-notifications and penalties that restrict the business activities of platforms for serious circumstances of infringement. Although noting improvements under the draft amendments, right holders have raised concerns about the failure to codify the elimination of liability for erroneous notices submitted in good faith, as well as proposed changes that would allow reinstatement of listings upon posting a guarantee.
Copyright
Right holders continue to highlight the need for effective implementation and clarification of criminal liability for the manufacture, distribution, and exportation of circumvention devices, as well as new measures to address online piracy. Right holders also report continuing uncertainty about whether amendments to the Copyright Law in 2021 protect sports and other live broadcasts, and recommend clarification in the copyright regulations. While right holders welcomed some effective, but limited, enforcement actions, such as the annual Sword-Net Special Campaign that targeted online piracy of copyrighted content, they encourage China to develop these periodic campaigns into sustained, long-term enforcement measures.
Patents
Right holders raised concerns that, although the Patent Law allows the filing of supplemental data to support disclosure and patentability requirements, the rules for accepting post-filing data are opaque and patent examiners have applied an overly stringent standard to reject such data. In addition, the China National Intellectual Property Administration’s (CNIPA) administrative Patent Reexamination and Invalidation Department and Chinese courts reportedly reject supplemental data based on unduly stringent requirements for acceptance of such data, resulting in potentially improper invalidity decisions. Such decisions can also lead to automatic dismissal of parallel patent infringement proceedings in China’s courts.
Following the implementation of a mechanism for the early resolution of potential pharmaceutical patent disputes in 2021, right holders have expressed concerns about the lack of transparency in decisions issued by CNIPA, the cumbersome registration system, and the lack of any penalties for erroneous patent statements. Right holders continue to raise concerns that they had identified prior to implementation, such as regarding the scope of patents and pharmaceuticals covered by the mechanism, the lack of clarity about what could trigger a dispute under the mechanism, potential difficulties in obtaining preliminary injunctions, the length of the stay period, and the possibility of bias in favor of Chinese companies.
The issuance of anti-suit injunctions by Chinese courts in standard essential patent (SEP) disputes has not occurred in recent years, but the issue continues to raise due process and transparency concerns for right holders, including regarding how such rulings may favor domestic companies over foreign patent holders. High-level political and judicial authorities in China have called for extending the jurisdiction of China’s courts over global IP litigation and have cited the issuance of an anti-suit injunction as an example of the court “serving” the “overall work” of the Chinese Communist Party and the Chinese State. Moreover, Chinese courts appear increasingly interested in exercising jurisdiction in cases involving SEPs, raising concerns that China seeks to establish itself as the forum for SEP litigation in order to favor domestic companies.
The National People’s Congress passed amendments to the Anti-Monopoly Law (AML), which entered into effect in August 2022. Right holders have raised concerns about the implementation of the amended AML, particularly regarding the draft implementing rules that define anticompetitive behavior in the development of standards and the licensing and implementation of SEPs. Right holders stated concerns that AML enforcement can be misused for the purpose of depressing the value of foreign-owned IP in key technologies, including by finding violations of the law with respect to the licensing of patents without actual harm to competition or the competitive process.
It is critical that China’s AML enforcement be fair, transparent, and non-discriminatory; afford due process to parties; focus on whether there is harm to competition or the competitive process, consistent with the legitimate goals of competition law; and implement appropriate competition remedies to address the competitive harms. China should not use competition law to advance noncompetition goals.
Trademarks
Stakeholders welcomed the publication of draft amendments to the Trademark Law in January 2023, which contain provisions relating to bad faith trademarks. However, the draft amendments remain pending. The State Council’s 2024 Legislative Work Plan included the draft amendments to the Trademark Law, but the release date of an updated draft is still unknown. In 2023 and 2024, China sought to address some concerns regarding bad faith trademark applications, including by issuing a measure intended to provide more consistent and predictable application examination results, by providing a non-use ground for cancellation of a collective or certification mark in another measure, and by establishing goals for combating bad faith trademark registrations.
Despite these developments, bad faith trademarks remain one of the most significant challenges for U.S. brand owners in China. The United States continues to urge China to take further steps to address concerns.
In 2024, stakeholders continued to raise concerns regarding reforms that appear primarily focused on increasing the speed rather than quality of trademark examinations. While CNIPA continues to tout downward trends in the average period for obtaining a trademark from the date of application to registration (currently less than 7 months), and the average time for appeals of trademark oppositions and rejections has been cut to 11 months and 5.5 months, respectively, stakeholders continue to indicate that the quality of trademark examination is inconsistent across the board.
Developments
In 2024, the National People’s Congress (NPC) and its Standing Committee issued no new or amended legislation directly addressing IP. Despite some positive reports from right holders of courts issuing higher damage awards for IP infringement, insufficient damage awards are still a concern. China has yet to address right holder concerns with respect to preliminary injunctive relief, evidence production, evidentiary requirements, establishment of actual damages, burdensome thresholds for criminal enforcement, and lack of deterrent-level damages and penalties.
Right holders continue to raise concerns about their ability to meet consularization and notarization requirements for documents submitted to the Beijing Intellectual Property Court and in other IP related proceedings. As a positive step, the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) entered into force with respect to China in November 2023. However, right holders continue to report inconsistent implementation, including instances where Chinese courts still required burdensome legalization procedures for certain court documents, hampering the efficacy of civil litigation to resolve IP disputes.
The decrease in transparency and the potential for political intervention with the judicial system, as well as the emphasis on administrative enforcement in China, remain as critical concerns. Adding to these concerns, in March 2025, the State Council of China issued the Provisions on the Handling of Foreign-Related Intellectual Property Disputes, a troubling new measure that seemingly legitimizes political intervention in IP disputes. This new measure authorizes Chinese government agencies to take countermeasures against and impose restrictions on foreign entities that “use intellectual property disputes as an excuse to contain and suppress China” and also to “take discriminatory restrictive measures against Chinese citizens or organizations.” The new measure further prohibits any organization or individual from implementing or assisting in implementing foreign IP enforcement actions deemed “discriminatory restrictive measures,” or else be liable for civil damages.
A long-standing concern has been that Chinese courts publish only selected decisions rather than all preliminary injunctions and final decisions. Moreover, the number of verdicts uploaded online has consistently decreased over the past few years, further hampering transparency and making it more difficult for right holders to determine how China protects and enforces foreign IP. In January 2024, the SPC admitted to the decrease in case publications and announced the launch of a National Court Judgments Database. Initial details shared in December 2023 indicated the database would not be available to the public, and the SPC has yet to clarify the extent to which case decisions will be accessible to the general public or foreign firms. Additional concerns include interventions in judicial proceedings by local government officials, party officials, and powerful local interests that undermine the authority of China’s judiciary and rule of law. In January 2024, amendments to the Civil Procedure Law entered into effect that expanded the jurisdiction of Chinese courts in cases involving foreign parties. A judiciary truly independent from the Communist Party of China is critical to promote rule of law in China and to protect and enforce IP rights. Right holders also expressed concerns about the increased emphasis on administrative enforcement, as authorities often fail to provide right holders with information regarding the process or results of enforcement actions. The transfer of administrative IP cases for criminal enforcement remains uneven, as administrative authorities may be reluctant to transfer cases where they can collect large fines and criminal enforcement authorities reportedly lack the budget for warehousing counterfeits and investigations.
China Releases Regulations on the Protection of New Plant Varieties
On May 1, 2025, China’s State Council released the Regulations on the Protection of New Plant Varieties (中华人民共和国植物新品种保护条例). Major changes in the Regulations include extending the term of variety rights for woody and vine plants from 20 years to 25 years and for other plants from 15 years to 20 years. Further, preliminary examination should be reduced from 6 months to 3 months. China has been emphasizing new plant varieties infringement this year with these Regulations, a 53 million RMB verdict in a new plant varieties infringement case, and the Supreme People’s Court release of a batch of typical cases of seed IP protection. The Regulations come into force on June 1, 2025.
The full text is available here (Chinese only). A translation follows:
Chapter I General Provisions
Article 1 These Regulations are formulated in accordance with the Seed Law of the People’s Republic of China in order to protect the rights of new plant varieties, encourage the cultivation and popularization of new plant varieties, and promote the development of agriculture, forestry and grassland.
Article 2 The new plant varieties referred to in these Regulations refer to plant varieties that have been artificially bred or improved from discovered wild plants and have novelty, specificity, consistency, stability and appropriate naming.
Article 3 The protection of new plant varieties should adhere to the leadership of the Communist Party of China, implement the party and state’s strategic deployment of intellectual property rights, promote breeding innovation, and promote high-quality development of the seed industry.
Article 4 The competent departments of agriculture and rural affairs, and forestry and grassland under the State Council shall be responsible for the protection of new plant varieties nationwide in accordance with the division of responsibilities, accept and examine applications for new plant variety rights, and grant new plant variety rights (hereinafter referred to as variety rights) to new plant varieties that comply with the provisions of these Regulations; improve the testing system for new plant varieties, improve the preservation and management of propagation materials, and strengthen publicity and training on the protection of new plant varieties and related technical research.
The agricultural, rural affairs, forestry and grassland authorities of local people’s governments at or above the county level are responsible for the protection of new plant varieties within their administrative regions in accordance with their respective duties.
Article 5 Entities and individuals who have made outstanding contributions to the breeding and promotion of new plant varieties shall be commended and rewarded in accordance with relevant national regulations.
Article 6 The production, operation and promotion of new plant varieties granted variety rights (hereinafter referred to as authorized varieties) shall comply with the provisions of relevant laws and regulations on seed management.
Chapter II Content and Ownership of Variety Rights
Article 7 The owner of a variety right (hereinafter referred to as the variety right holder) shall have exclusive rights to the authorized variety. Unless otherwise provided by law or these Regulations, no unit or individual may, without the permission of the variety right holder, conduct the following acts on the propagation materials of the authorized variety:
(1) production, propagation and processing for propagation;
(2) Promise to sell, or sell;
(3) Import and export;
(4) Storage for the purpose of carrying out the acts specified in Items 1 to 3 of this paragraph.
Where the conduct provided for in the preceding paragraph involves harvested materials obtained from the unauthorized use of propagation materials of authorized varieties, the permission of the variety right holder shall be obtained; however, this shall not apply where the variety right holder has had a reasonable opportunity to exercise his rights with respect to the propagation materials.
The acts prescribed in the first and second paragraphs for the following varieties shall be subject to the permission of the owner of the variety right of the authorized variety:
(1) a substantially derived variety of an authorized variety, but the authorized variety itself is not a substantially derived variety;
(2) a variety that, compared with the authorized variety, does not have the obvious distinction provided for in Article 16 of these Regulations;
(3) another variety produced or propagated using the authorized variety for commercial purposes.
Article 8 The State shall implement the substantially derived variety system in steps. The competent departments of agriculture and rural affairs and forestry and grassland under the State Council shall determine the specific scope of implementation in the form of a catalogue, which shall be announced and implemented after approval by the State Council.
Substantially derived varieties are mainly determined based on the results of molecular testing and phenotypic testing, and when necessary, comprehensive consideration is given to factors such as breeding methods, breeding process, and genetic relationships. The competent departments of agriculture, rural areas, forestry, and grasslands under the State Council shall formulate guidelines for the determination of substantially derived varieties, determine the scope of application, detection and testing methods, determination thresholds, technical processes, etc., and clarify the conditions that detection and testing institutions should have.
The agricultural and rural affairs and forestry and grassland authorities of the State Council have established an expert center consisting of experts in breeding, inspection, testing, management and law to provide professional support for the implementation of the substantive derived variety system.
Article 9: For work-related breeding completed in the execution of the unit’s tasks or mainly using the unit’s material and technical conditions, the right to apply for variety rights belongs to the unit; for non-work-related breeding, the right to apply for variety rights belongs to the individual who completed the breeding. For breeding completed using the unit’s material and technical conditions, if the unit and the individual who completed the breeding have a contractual agreement on the right to apply for variety rights, the agreement shall prevail.
In case of entrusted breeding or cooperative breeding, the parties may agree in the contract on the ownership of the application right for the variety right. If there is no contractual agreement, the application right for the variety right belongs to the entity or individual that is entrusted to complete or jointly completes the breeding.
Once the application is approved, the variety right belongs to the applicant.
Article 10: A new plant variety can only be granted one variety right. If two or more applicants apply for a variety right for the same new plant variety, the variety right shall be granted to the person who first applied; if they apply at the same time, the variety right shall be granted to the person who first completes the breeding of the new plant variety.
Article 11 The right to apply for a variety right and the variety right may be transferred in accordance with the law.
If a Chinese unit or individual transfers the application right or variety right of a new plant variety cultivated within the country to a foreigner, foreign enterprise or other foreign organization, it must be approved by the agricultural, rural affairs, forestry and grassland authorities of the State Council.
Where an application right or variety right is transferred, the parties shall enter into a written contract and register with the competent departments of agriculture, rural affairs, forestry and grassland under the State Council, which shall make an announcement. The transfer shall take effect from the date of registration.
If a variety right is pledged, the pledger and the pledgee shall jointly apply for pledge registration with the agricultural and rural affairs, forestry and grassland authorities of the State Council, which shall make an announcement.
Article 12 Where an authorized variety is used under the following circumstances, the permission of the variety right holder may be omitted and no royalties shall be paid to the holder, provided that other rights enjoyed by the variety right holder in accordance with these Regulations and relevant laws and administrative regulations shall not be infringed:
(1) Using the authorized varieties for breeding and other scientific research activities;
(2) Propagation materials of authorized varieties propagated by farmers for their own use.
Article 13 In the interests of the state or the public interest, the competent departments of agriculture, rural affairs, forestry and grassland of the State Council may make a decision to implement compulsory licensing of variety rights, and register and announce it.
The entity or individual that obtains the compulsory license shall pay a reasonable usage fee to the variety right holder, the amount of which shall be agreed upon by both parties; if the two parties cannot reach an agreement, the competent departments of agriculture, rural affairs, forestry and grassland of the State Council shall make a ruling.
If the variety right holder is dissatisfied with the decision on compulsory licensing, or if the variety right holder and the entity or individual that has obtained the compulsory license are dissatisfied with the ruling on the compulsory licensing fee, they may bring a lawsuit in accordance with the law.
The entity or individual that obtains a compulsory license does not enjoy exclusive implementation rights and does not have the right to allow others to implement it.
Chapter III Conditions for Granting Variety Rights
Article 14 The new plant variety for which a variety right is applied for shall belong to the genus or species of plants listed in the national plant variety protection list. The plant variety protection list shall be determined and announced by the agricultural and rural affairs, forestry and grassland authorities of the State Council.
Variety rights will not be granted to new plant varieties that violate the law and endanger the public interest or the ecological environment.
Article 15 New plant varieties granted variety rights shall be novel. Novelty means that the propagation materials and harvested materials of the new plant varieties for which variety rights are applied have not been sold or promoted before the date of application, or the propagation materials and harvested materials of the new plant varieties for which variety rights are applied have not been sold or promoted by the applicant on his own or with his consent for more than one year in China; outside China, for woody and vine varieties, it has not been more than six years, and for other plant varieties, it has not been more than four years.
For plant genus or species newly included in the list of protected plant varieties after the implementation of the Seed Law of the People’s Republic of China on January 1 , 2016 , if an application for variety rights is filed within one year from the date of publication of the list, and the propagation materials and harvested materials of the variety have not been sold or promoted in China for more than four years before the application date, they shall be novel.
In addition to the loss of novelty in sales and promotion activities, the following circumstances are deemed to have lost novelty:
(1) The variety has been confirmed by the competent departments of agriculture, rural affairs, forestry and grassland of the people’s government of the province, autonomous region or municipality directly under the central government to have actually spread based on the sowing area;
(2) The crop variety has been approved or registered for more than 2 years but no application for a new plant variety right has been made.
Article 16 A new plant variety granted a variety right shall have specificity. Specificity means that a plant variety has one or more traits that are clearly different from known varieties.
Article 17 New plant varieties granted variety rights shall be consistent. Consistency refers to the characteristics of a plant variety, which, apart from predictable natural variations, have consistent performance of related features or characteristics among individuals within a population.
Article 18 A new plant variety granted a variety right shall be stable. Stability means that the main characteristics of a plant variety remain unchanged after repeated reproduction or at the end of a specific reproduction cycle.
Article 19 A new plant variety granted a variety right shall have an appropriate name that is distinguishable from the names of known varieties of the same or similar plant genus or species. The name shall be the common name of the new plant variety after authorization. Regardless of whether the protection period of the authorized variety has expired, the authorized name shall be used for the sale and promotion of the authorized variety.
The following names shall not be used for variety naming:
(1) Expressed only in numbers;
(2) Violating social ethics;
(3) being likely to cause misunderstanding as to the characteristics, properties or identity of the breeder of a new plant variety;
(4) Infringement of the prior rights of others;
(5) Other circumstances prohibited by laws, administrative regulations or national provisions.
The same plant variety can only use the same name when applying for new variety protection and variety approval, variety registration, sales and promotion.
Chapter IV Application and Acceptance of Variety Rights
Article 20: Chinese entities or individuals applying for variety rights may submit their applications directly or through an agency to the competent departments of agriculture, rural affairs, forestry and grasslands of the State Council.
If a new plant variety for which a Chinese entity or individual applies for a variety right involves national security or major interests and needs to be kept confidential, it should be handled in accordance with relevant national regulations.
Article 21 Where foreigners, foreign enterprises or other foreign organizations apply for variety rights in China, they shall do so in accordance with the agreement signed between their country and the People’s Republic of China or the international treaty to which both countries are parties, or in accordance with these Regulations based on the principle of reciprocity.
Foreigners, foreign enterprises or other foreign organizations that do not have a permanent residence or place of business in China and who apply for variety rights to the competent departments of agriculture, rural affairs, forestry and grassland of the State Council shall entrust an agency established in China in accordance with the law to handle the application.
Article 22: Applicants for variety rights shall submit application documents that comply with the prescribed format requirements to the competent departments of agriculture, rural affairs, forestry and grasslands under the State Council.
Application documents should be written in Chinese.
Article 23 The application date is the date on which the competent departments for agriculture, rural affairs, forestry and grasslands of the State Council receive the application documents for variety rights. If the application documents are sent by mail, the application date is the date of the postmark.
Article 24 If an applicant files a variety right application in China for a new plant variety within 12 months from the date of the first filing of a variety right application in a foreign country, he or she may enjoy priority in accordance with the agreement concluded between that foreign country and the People’s Republic of China or the international treaty to which both countries are parties, or based on the principle of mutual recognition of priority.
If an applicant claims priority, he or she shall make a written statement at the time of application and, within three months, submit a copy of the first application document for variety rights submitted and confirmed by the original accepting authority; if an applicant fails to make a written statement or submit a copy of the application document in accordance with the provisions of these Regulations, it shall be deemed that no priority is claimed.
Article 25 The agricultural and rural affairs, forestry and grassland authorities of the State Council shall accept applications for variety rights that comply with the provisions of Article 22 of these Regulations, specify the application date, assign an application number, and notify the applicant to pay the application fee within one month from the date of receipt of the application.
The competent departments of agriculture, rural affairs, forestry and grassland under the State Council will not accept applications for variety rights that do not comply with, or still do not comply with, the provisions of Article 22 of these Regulations after modification, and will notify the applicant.
Article 26 An applicant may modify or withdraw the application for a variety right before the right is granted.
Article 27 Any unit or individual that applies for a variety right abroad for a new plant variety cultivated in China shall register with the competent departments of agriculture, rural affairs, forestry and grassland of the State Council; if it provides propagation materials abroad, it shall comply with the provisions of the Seed Law of the People’s Republic of China on the provision of germplasm resources abroad.
Chapter V Examination and Approval of Variety Rights
Article 28 After the applicant pays the application fee, the competent departments of agriculture and rural affairs and forestry and grassland under the State Council shall conduct a preliminary review of the following contents of the variety right application:
(1) Whether the plant belongs to the plant genus or species listed in the list of protected plant varieties;
(2) Whether it complies with the provisions of Article 21 of these Regulations ;
(3) whether the requirements on novelty are met;
(iv) Whether the naming of the new plant variety is appropriate.
Article 29 The competent departments of agriculture, rural affairs, forestry and grassland under the State Council shall complete the preliminary examination within 3 months from the date of accepting the application for variety right; if the situation is complicated, the period may be extended by 3 months. The competent departments of agriculture, rural affairs, forestry and grassland under the State Council shall announce the application for variety right that has passed the preliminary examination and notify the applicant to pay the examination fee within 3 months.
For applications for variety rights that fail to meet the preliminary review requirements, the State Council’s agricultural and rural affairs and forestry and grassland authorities shall notify the applicant to state their opinions or make corrections within three months. If no response is given within the time limit, the application for variety rights shall be deemed withdrawn; if the application is still unqualified after correction, the application shall be rejected.
Article 30 After the applicant pays the examination fee in accordance with the regulations, the competent departments of agriculture, rural affairs, forestry and grassland of the State Council shall conduct a substantive examination of the specificity, consistency and stability of the application for variety rights.
If the applicant fails to pay the examination fee as required, the variety right application will be deemed withdrawn.
Article 31 The competent departments of agriculture, rural affairs, forestry and grassland under the State Council shall conduct substantive examination mainly based on application documents and other relevant written materials. When the competent departments of agriculture, rural affairs, forestry and grassland under the State Council deem it necessary, they may entrust designated testing institutions to conduct tests or examine the results of completed planting or other experiments.
For review purposes, the applicant shall provide necessary information and breeding materials of the new plant variety in accordance with the requirements of the agricultural, rural, forestry and grassland authorities of the State Council.
Article 32 For applications for variety rights that have been substantively examined and comply with the provisions of these Regulations, the competent departments for agriculture, rural affairs, forestry and grasslands under the State Council shall make a decision to grant the variety right, issue a variety right certificate, and register and announce it. The variety right shall take effect from the date of the authorization announcement.
The competent departments of agriculture, rural affairs, forestry and grassland under the State Council shall reject any application for variety rights that does not comply with the provisions of these Regulations after substantive examination and notify the applicant.
Article 33 The competent departments of agriculture, rural affairs, forestry and grassland under the State Council shall establish a New Plant Variety Review Committee (hereinafter referred to as the Review Committee).
If the applicant is dissatisfied with the decision to reject the application for variety rights, he or she may request a review from the Review Committee within three months from the date of receipt of the notice. If the request for review complies with the regulations, the Review Committee shall make a decision within six months from the date of receipt and notify the applicant. If testing, testing and appraisal are required according to law, the time required shall not be counted within the prescribed period.
If the applicant is dissatisfied with the review decision of the Review Committee, he or she may bring a lawsuit in accordance with the law.
The specific provisions for the review shall be formulated by the competent departments of agriculture, rural affairs, forestry and grassland of the State Council.
Article 34 After a variety right is granted, if any unit or individual violates the provisions of Article 7 of these Regulations during the period from the date of the announcement of the preliminary examination result to the date of grant of the variety right , the variety right holder shall have the right to seek compensation.
Chapter VI Duration, Termination and Invalidity of Variety Rights
Article 35 The term of protection of a variety right is 25 years for woody and vine plants and 20 years for other plants, commencing from the date of announcement of the grant of the right.
Article 36 The holder of a variety right shall pay an annual fee starting from the year in which the variety right is granted, and shall provide breeding materials of the authorized variety for inspection and testing in accordance with the requirements of the agricultural and rural affairs and forestry and grassland authorities of the State Council.
Article 37 A variety right shall terminate before the expiration of its protection period in any of the following circumstances:
(1) The holder of the plant variety right renounces the plant variety right in a written statement;
(2) The holder of the variety right fails to pay the annual fee in accordance with the regulations;
(3) the holder of the variety right fails to provide the propagation materials of the authorized variety required for inspection and testing in accordance with the requirements of the competent departments for agriculture, rural affairs, forestry and grassland under the State Council;
(4) after examination and testing the authorized variety no longer conforms to the characteristics and properties for which the variety right was granted.
The termination of a variety right shall be registered and announced by the competent departments of agriculture, rural affairs, forestry and grassland of the State Council.
Article 38 From the date of announcement of the grant of variety rights, the Review Committee may, based on its authority or based on the written request of any unit or individual, declare the variety rights invalid if they do not comply with the provisions of Articles 15 to 18 of these Regulations; if they do not comply with the provisions of Article 19 of these Regulations, order them to change their names, and if they refuse to change their names, declare the variety rights invalid. The decision to declare the variety rights invalid or to change their names shall be registered and announced by the competent departments of agriculture and rural affairs, forestry and grasslands of the State Council, and the Review Committee shall notify the parties concerned.
If a party is dissatisfied with the invalidation decision of the Review Committee, he or she may bring a lawsuit in accordance with the law.
Article 39 A variety right that has been declared invalid shall be deemed to have never existed.
The decision to declare a variety right invalid shall not have retroactive effect on the judgments and mediation documents on plant variety infringements made and executed by the people’s court before the declaration, the decisions on plant variety infringements made and executed by the agricultural, rural, forestry and grassland authorities of the people’s government at or above the county level, and the variety right implementation license contracts and variety right transfer contracts that have been performed. However, if the variety right holder causes losses to others due to malicious intent, reasonable compensation shall be given.
If the compensation for infringement of new plant varieties, the fee for the use of variety rights, and the fee for the transfer of variety rights are not returned in accordance with the provisions of the preceding paragraph, which is a clear violation of the principle of fairness, they shall be returned in full or in part.
Article 40 If a party loses its rights due to force majeure due to delay in meeting the time limit prescribed in these Regulations or the time limit designated by the competent departments of agriculture, rural affairs, forestry and grassland of the State Council, it may, within 2 months from the date on which the obstacle is removed and within 2 years from the date on which the time limit expires , explain the reasons to the competent departments of agriculture, rural affairs, forestry and grassland of the State Council and request the restoration of its rights together with relevant supporting documents.
If a party loses its rights due to delay in the time limit prescribed in these Regulations or the time limit specified by the competent departments of agriculture, rural affairs, forestry and grassland of the State Council due to other legitimate reasons, it may state the reasons to the competent departments of agriculture, rural affairs, forestry and grassland of the State Council and request the restoration of its rights within 2 months from the date of receipt of the notice from the competent departments of agriculture, rural affairs, forestry and grassland of the State Council; however, if the time limit for requesting review is delayed, a party may request the competent departments of agriculture, rural affairs, forestry and grassland of the State Council to restore its rights within 2 months from the expiration of the time limit for requesting review.
If a party requests an extension of the time limit specified by the agricultural, rural affairs, forestry and grassland competent departments of the State Council, it shall explain the reasons to the agricultural, rural affairs, forestry and grassland competent departments of the State Council and complete the relevant procedures before the expiration of the time limit.
The provisions of the first and second paragraphs of this Article shall not apply to the time limits stipulated in Articles 15, 24 and 35 of these Regulations.
Chapter VII Legal Liability
Article 41 Where a violation of Article 7 of these Regulations infringes upon the variety right, the parties shall resolve the dispute through negotiation. If the parties are unwilling to negotiate or fail to reach an agreement through negotiation, the variety right holder or interested party may request the competent departments of agriculture and rural affairs, forestry and grasslands of the people’s government at or above the county level to handle the case in accordance with their respective powers, or may file a lawsuit in accordance with the law.
The competent departments of agriculture, rural affairs, forestry and grassland of the people’s government at or above the county level may mediate the compensation for damages caused by infringement of variety rights in accordance with their respective powers and on the principle of voluntary participation of the parties. If an agreement is reached through mediation, the parties shall perform it; if the parties fail to perform the agreement or the mediation fails to reach an agreement, the variety right holder or interested party may file a lawsuit in accordance with the law.
When handling cases of infringement of variety rights, the agricultural, rural, forestry and grassland authorities of the people’s governments at or above the county level shall, in order to safeguard the public interest, order the infringer to stop the infringing behavior and confiscate the illegal gains and plant variety breeding materials; if the value of the goods is less than RMB 50,000 , a fine of RMB 10,000 to RMB 250,000 shall be imposed; if the value of the goods is more than RMB 50,000 , a fine of not less than 5 times but not more than 10 times the value of the goods shall be imposed.
Article 42: If authorized varieties are counterfeited, the agricultural, rural, forestry and grassland authorities of the people’s government at or above the county level shall order the cessation of counterfeiting and confiscate the illegal gains and plant variety breeding materials; if the value of the goods is less than RMB 50,000, a fine of RMB 10,000 to RMB 250,000 shall be imposed; if the value of the goods is more than RMB 50,000 , a fine of not less than 5 times but not more than 10 times the value of the goods shall be imposed; if a crime is constituted, criminal liability shall be pursued in accordance with the law.
Article 43: When investigating and handling cases of infringement of variety rights and counterfeiting of authorized varieties, the competent departments of agriculture, rural affairs, forestry and grasslands of the people’s governments at or above the county level have the right to take the following measures in accordance with the law:
(1) Entering production and operation sites for on-site inspection;
(2) sampling, testing, experimenting or inspecting the propagation materials or harvested materials of plant varieties;
(3) Review and copy contracts, bills, account books, production and operation files and other relevant materials related to the suspected illegal acts;
(4) Seizing and detaining plant variety propagation materials that have evidence of infringing variety rights or counterfeiting authorized varieties, as well as tools, equipment and means of transportation used to infringe variety rights or counterfeit authorized varieties;
(5) Seal off the premises where activities of infringing upon variety rights or counterfeiting authorized varieties are carried out.
When the agricultural, rural, forestry and grassland competent departments of the people’s governments at or above the county level exercise the powers prescribed in the preceding paragraph in accordance with the law, the parties shall assist and cooperate and shall not refuse or obstruct.
Article 44 If the parties have a dispute over the right to apply for a variety right and the ownership of the variety right, they may bring a lawsuit in accordance with the law.
Article 45 Where a person commits the following acts with respect to propagating materials or harvested materials without knowing that such acts infringe upon the variety rights, he shall not be liable for compensation if he can prove that they have a legal source:
(1) Processing for the purpose of reproduction by others;
(2) Promising to sell or selling;
(3) Storage for the purpose of carrying out the preceding two acts.
Article 46: Any staff member of the agricultural, rural, forestry and grassland administrative departments and relevant departments of the people’s governments at or above the county level who abuses his power, neglects his duties, engages in malpractice for personal gain, or solicits or accepts bribes shall be punished according to law; if a crime is constituted, criminal liability shall be pursued according to law.
Article 47 If any dishonest behavior such as deception, concealment, forgery, etc. occurs during the application process for variety rights, the competent departments of agriculture, rural affairs, forestry and grasslands of the State Council shall record it in the credit record of the relevant subject in accordance with relevant national regulations and make it public.
Chapter VIII Supplementary Provisions
Article 48 The following terms in these Regulations have the following meanings:
(1) Propagation material refers to the whole plant or part of the plant that can be used for propagation, including seeds, fruits, roots, stems, seedlings, buds, leaves, flowers, etc.;
(2) Harvested material refers to the whole plant or part of the plant obtained after planting.
Article 49 This Regulation shall come into force on June 1 , 2025.
Lamar Jackson Successfully Opposes Dale Earnhardt Jr.’s Claim to No. 8
Last month, two high-profile athletes, each identified by the number “8” in his respective sport, faced off (albeit briefly) at the USPTO’s Trademark Trial and Appeal Board. Lamar Jackson—starting quarterback of the NFL’s Baltimore Ravens and two-time MVP of the league—blocked racing legend Dale Earnhardt Jr.’s attempt to trademark a specific stylized version of the number 8 that is displayed on his racecar:
USPTO trademark application status for Serial No. 98513061
Jackson’s Claim to No. 8
In addition to wearing number 8 on the field, Jackson has obtained a trademark registration for a logo incorporating the words “2018 ERA 8 BY LAMAR JACKSON 2018” and owns two pending applications for the word marks “ERA 8” and “ERA 8 BY LAMAR JACKSON.” In his Notice of Opposition, Jackson relied on these trademark records, whose underlying marks are affiliated with clothing, headwear, footwear, backpacks, and other athletic accessories, to argue that Earnhardt Jr’s pending application for a stylized 8 covering similar goods may result in consumer confusion.
Specifically, Jackson contended that he is well known by his uniform number 8 “due to his notoriety and fame, along with his promotion of the number in his trademarks and in media coverage” such that registration of Earnhardt Jr’s proposed 8 mark could falsely suggest an affiliation or other type of partnership between the two athletes. The crux of Jackson’s filing is the concern that consumers are likely to mistakenly believe that apparel and other products offered under Earnhardt Jr’s mark are related to those provided by Jackson.
The legal battle between Jackson and Earnhardt Jr. was short-lived, as Earnhardt Jr. abandoned the application for his version of the stylized 8 mark less than one week after the Notice of Opposition was filed. Jackson is no stranger to defending his rights to the number at the USPTO, as he has also opposed retired quarterback Troy Aikman’s trademark application for the word “EIGHT” in an opposition proceeding that remains pending.
Athletes & Trademarks Incorporating Jersey Numbers
Numbers, standing alone, are merely symbols that denote certain meanings and are not inherently distinctive under trademark law. Therefore, to obtain a trademark registration for a number (or letter), an applicant must first establish that the number is distinctive, such that it functions as an identifier of the source of goods or services.
An applicant may demonstrate a nondescript mark has acquired distinctiveness by submitting evidence that consumers associate the mark specifically with the applicant. It is unlikely that an athlete (or anyone) could gain exclusive control over a standalone number like the number 8. Still, as here, when an athlete incorporates a jersey number into their personal brand it can transform a jersey number common to many athletes into a personal brand identity for a single person.
Navigating the Regulatory Landscape for Private Label Alcohol
Private labels are not a new concept – many consumers have purchased private label products for years, but their use is becoming more prevalent and ubiquitous in the market as demand for private labels continues to rise. Whether you are a retailer launching your own wine label or a brewery producing beer for a supermarket chain, the business opportunities are abundant, but so are the regulatory considerations.
What Are Private Labels?
While not formally defined at the federal level, according to the Alcohol and Tobacco Tax and Trade Bureau (TTB), “private labels” are labels “created for purchasers other than the ultimate consumer. They may bear a brand name or artwork that is specific to the purchaser, such as a retail store or restaurant, who is buying the product in order to sell it to consumers.”
With a private label, the intellectual property (IP) used to brand and market the product is owned or under the control of the retailer. The retailer then enters into a licensing agreement authorizing a producer (or multiple producers) to make products under specified trademarks and other IP owned by the retailer. Despite their nature, in most jurisdictions, sales pass through an independent wholesaler, often one identified by the retailer as willing to take a lower markup than is customary on the product. The products are subject to the same labeling requirements as any other TTB-regulated product.
Private labels are sometimes confused with control labels, primarily because of the issue of who owns the IP. For a control label, as opposed to a private label, the brand name and trademark are owned by the supplier. The product is made to the retailer’s specifications, and it is sold to a specific retail account. With a control label, the retailer can influence marketing and pricing strategies as well. Control labels, in particular, are prohibited more often than private labels, with states taking issue with a manufacturer retaining ownership of a brand that a retailer is exerting control over.
Private labels are not expressly permitted or prohibited at the federal level, but TTB’s labeling regulations implicitly recognize that a retailer’s name may appear on a label and that a supplier may bottle a product for a retailer. At the state level, while private label arrangements are prohibited in a few jurisdictions (e.g., Arkansas), most states permit such arrangements. In some jurisdictions (e.g., New York), the supplier or wholesaler must restrict sales of the private label to the retailer that owns the IP. In others (e.g., Texas), the private label product must be available, at least in theory, to any retailer that wishes to purchase it. However, private label products present an obvious question: How do they exist without violating tied-house and anti-discrimination laws?
For example:
Private labels can pose tied-house issues if the retailer is deemed to have disproportionate control over the production process (e.g., beyond quality control and IP protections). Or, conversely, the manufacturer has undue control over the retailer (e.g., quota sales, exclusive outlets).
A retailer is likely to require that the supplier sell private label products exclusively to the retailer who owns the private label and not to other retailers. In states where private labels are explicitly required to be sold exclusively at the retailer who owns the brand, this is not an issue. Alternatively, retailer exclusivity, if not expressly prohibited or required, most frequently implicates anti-discrimination statutes that require a distributor to sell all the products it carries to any interested retailer. This becomes problematic for the private label model.
Accordingly, the primary areas to be mindful of in this space are:
Tied-house prohibitions and the flowing of “things of value,” particularly in states that do not have statues or regulations that address these types of brands; and
Anti-discrimination provisions that prevent sales of a product to only one retailer.
Best Practices
Modifying a strategy for selling private labels based on a state’s regulations is the best way to manage risk in this space. With this complex regulatory landscape in mind, certain risk mitigation strategies or arguments may support the continued sale of private label brands:
No profit-sharing between the retailer and manufacturer;
Arrangements should be arms-length with no undue restrictions or conditions placed on the retailer by the supplier or producer;
Products should flow through the three-tier system;
No cross-marketing or tie-in sales for private labels with standard brands;
No sales below cost to the retailer;
The IP agreements should remain clear that the retailer has the right to use the brand; and
Use creative wording and avoid using the term “exclusive” in states where anti-discrimination statutes prohibit exclusive retailer arrangements.
Conclusion
While this post does not cover everything that there is to know about the private label space, an industry member’s success will ultimately be based on a combination of (1) taking a granular approach, (2) creating a patchwork of solutions across every jurisdiction, and (3) a determination that the benefits outweigh the risks.
USPTO Expedites Patent Issuance: Things To Do Before Paying the Issue Fee
In an effort to offer customers better service, the United States Patent and Trademark Office has been modernizing various aspects of their operations. One result of the modernization and efficiency efforts relates to expedited patent issue dates. On April 15th, the Patent Office announced that ― starting on May 13th, 2025 ― it will be accelerating the issue dates for patents, reducing the time between receiving an issue notification and issue date to approximately two weeks. For applicants navigating the patent process, these changes come with both new considerations and opportunities.
Background
Once a patent is allowed, the applicant must pay a fee to have the patent “issue” ― i.e., to officially publish and go into effect. Once the fee is paid, the Patent Office sends an issue notification that informs the applicant of the patent number and the date that it will issue. On average, the time between an issue notification and issue date is currently several weeks. Going forward, patents will issue about two weeks after the issue notification.
With the shortened time between the issue notification and issue date, applicants need to adjust their strategies accordingly. We recommend the following strategies for continuing applications and final steps before paying the issue fee.
When to File a Continuing Application
In order to maintain co-pendency, a continuing application must be filed “before” the patent to which it claims priority, issues. A continuing application can claim the same filing date as an earlier filed application when the continuing application is filed on the day the earlier one issues (Immersion Corporation v. HTC Corporation). But waiting this late to file is not best practice. With patents now issuing faster, we recommend filing a continuing application before or simultaneously with paying the issue fee.
What to do Before You Pay the Issue Fee
With the shortened wait time between the issue notification and issue date, there will be less time for applicants to review and correct any issues. Therefore, before paying the issue fee, applicants should:
Ensure that the list of inventors is correct;
Review for whether there are additional references to cite;
Review whether the entity size status has changed; and
Review allowed claims carefully for any corrections needed.
Taking care of these matters before paying the issue fee helps to avoid post issuance corrections and issues, such as:
Increased difficulty when correcting inventorship of an issued patent under 37 CFR § 1.324, compared to a pending application under 37 CFR 1.48(a);
Potential invalidity if not all material prior art was cited and/or the associated cost and uncertainty of post issuance corrective proceedings;
Corrective action to pay the higher large entity issue fee if a company has erroneously paid the lower small entity issue fee amount; and
Waiting years for USPTO to issue a Certificate of Correction when an applicant requests corrections to issued patents and the corrections are due to applicant error.
Takeaways
USPTO’s modernization efforts are bringing about significant changes to the status quo. It is important for applicants and practitioners to stay ahead of these changes and be ready to change standard practices when necessary. As the USPTO continues to evolve, staying informed and prepared will be essential to protecting your intellectual property efficiently and effectively.
Choose Your GenAI Model Providers, Models, and Use Cases Wisely
Generative AI (GenAI) vendors, models, and uses cases are not created equal. Model providers must be trusted to handle sensitive data. Models, like tools in a toolbox, may be better suited for some jobs than others. Use cases vary widely in risk.
When it comes to selection of GenAI model providers (e.g., tech companies and others offering models) and their models, due diligence is wise. For example, DeepSeek dominated headlines in early 2025 as a trendy pick for high performance and lower cost GenAI models. But not everyone is sold. A number of U.S. states and the federal government are reportedly implementing or considering bans because the models allegedly transfer user data to China, among other concerns.
Before selecting a provider and model, it is important to learn where the provider is located; where data is transferred and stored; where and how the training data was sourced; compliance with the NIST AI risk management framework, ISO/IEC 42001:2023, and other voluntary standards; impact or risk assessments under the EU AI Act, Colorado AI Act, and other laws; guardrails and other safety features built into the model; and performance metrics of the model relative to planned use cases. This information may be learned from the “model card” and other documentation for each model, conversations with the provider, and other research. And, of course, the contractual terms governing the provider relationship and model usage are critical. Key issues include IP ownership, confidentiality and data protection, cybersecurity, liability, reps and warranties, and indemnification.
Once the appropriate provider and model are selected, the job is not done. Use cases must also be scrutinized. Even if a particular GenAI model is approved for use generally, what it is used for still matters (a lot). It may be relatively low risk to use an AI model for one purpose (e.g., summarizing documents), but the risk may increase for another purpose (e.g., autonomous resume screening). Companies should calibrate their risk tolerance for AI use cases, leaning on a cross-functional AI advisory committee. Use cases should be vetted to mitigate risks including loss of IP ownership, loss of confidentiality, hallucination and inaccuracies in outputs, IP infringement, non-unique outputs, and biased and discriminatory outputs and outcomes. If GenAI is already being used by employees in an ad hoc manner before a formal governance framework is implemented, identify such use though the advisory committee and other outreach, and prioritize higher-risk use cases for review and potential action.
Once enterprise risk tolerance is calibrated, AI usage policies and employee training should be rolled out. The policy and training should articulate which models and use cases are (and are not) permitted and explain the “why” behind the decisions to help contextualize important risks for employees. Policies should consider both existing laws and voluntary frameworks like NIST and ISO/IEC and should remain living documents subject to regular review and revision as the legal and technological landscape continue evolving rapidly. Employee training is not only a good idea, but may also be a legal mandate, e.g., under the “AI literacy” requirement of the EU AI Act for companies doing business in the EU.
Bottom line: all businesses and their employees will soon be using GenAI in day-to-day operations—if they are not already. To mitigate risk, carefully select your vendors, models, and uses cases, and implement policies and training reflecting enterprise risk tolerance.
China’s National Intellectual Property Releases RFC for Draft Patent Examination Guidelines Targeting Video Codecs
On April 30, 2025, China’s National Intellectual Property Administration (CNIPA) released a draft amendment for comment of the Patent Examination Guidelines (专利审查指南修改草案 (征求意见)), which is somewhat analogous to the US Patent & Trademark Office’s Manual of Patent Examining Procedure. One of the main proposed changes is the addition of a section tightening examination standards for video codec patent applications. CNIPA explained, in part, that the purpose of the addition was to “provide the right holder with the option of claiming rights to one of the links” (e.g., generation, storage and transmission of bitstreams) and prevent the “right holder from claiming rights to multiple links of the streaming industry and obtain licensing income that is disproportionate to their technical contributions.”
Comments are due June 15, 2025. A translation of the proposed bitstream addition and drafting notes follow. The full text is available here (Chinese only).
Proposed Addition
Part II Chapter 9
7. Provisions on the Examination of Invention Patent Applications Containing Bitstreams In application fields such as streaming media, communication systems, and computer systems, various types of data are generally generated, stored, and transmitted in the form of bitstreams. This section aims to make specific provisions on the examination of the protected object of invention patent applications containing bitstreams and the drafting of specifications and claims in accordance with the provisions of the Patent Law and its implementing regulations.
7.1 Examination of protected object
7.1.1 Applications that are not patentable
If the subject matter of a claim only involves a simple bitstream, the claim falls within the rules and methods of intellectual activities stipulated in Article 25, paragraph 1, item (2) of the Patent Law and does not fall within the subject matter of patent protection. If a claim, except for the title of its subject matter, all the contents that limit it only involve a simple bitstream, the claim falls within the rules and methods of intellectual activities stipulated in Article 25, paragraph 1, item (2) of the Patent Law and does not fall within the subject matter of patent protection.
7.1.2 Patentable applications In the technical field of digital video encoding/decoding,
If a specific video encoding/decoding method for generating a bitstream belongs to the technical solution described in Article 2, Paragraph 2 of the Patent Law, then the method for storing or transmitting the bitstream and the computer-readable storage medium for storing the bitstream defined by the specific video encoding/decoding method can achieve the optimization configuration of storage or transmission resources, etc. Therefore, the storage or transmission method and the computer-readable storage medium defined by the specific video encoding/decoding method belong to the technical solution described in Article 2, Paragraph 2 of the Patent Law and are the subject of patent protection.
7.2 Writing of the specification
The specification of an invention patent application containing a bitstream generated by a specific video encoding/decoding method shall make a clear and complete description of the specific video encoding/decoding method, which shall be implemented by a technician in the relevant technical field. If the subject of protection involves the method for storing or transmitting the bitstream and the computer-readable storage medium for storing the bitstream, the specification shall also make corresponding descriptions to support the claims.
7.3 Drafting of claims
An invention patent application that includes a bitstream generated by a specific video encoding/decoding method can be drafted as a method, device, and computer-readable storage medium claim. In the claims of an invention patent application, the specific video encoding/decoding method claim for generating the bitstream should generally be used as the basis, and the corresponding storage method, transmission method, and/or computer-readable storage medium claim should be drafted by citing the specific video encoding/decoding method claim or including all the features of the specific video encoding/decoding method.
[Example 1] An invention patent application related to “a video encoding method” can draft claims in the following manner.
A video encoding method, characterized in that it includes the following steps: obtaining a frame image to be encoded, dividing the current frame image into multiple image blocks; selecting at least one reference frame from the encoded frames; for each image block, searching for the best matching block in the reference frame, and calculating the motion vector between the image block and the best matching block; obtaining a prediction block from the reference frame according to the motion vector; calculating the residual between the image block and the prediction block; transforming and quantizing the residual to generate a quantization coefficient; performing entropy coding on the quantization coefficient and the motion vector to generate a bit stream.
A video encoding device, characterized in that it includes the following units: a frame image division unit, which obtains the current frame image to be encoded and divides the current frame image into multiple image blocks; a reference frame selection unit, which selects at least one reference frame from the encoded frame; a motion vector calculation unit, which searches for the best matching block in the reference frame for each image block and calculates the motion vector between the image block and the best matching block; a prediction block acquisition unit, which obtains the prediction block from the reference frame according to the motion vector; a residual calculation unit, which calculates the residual between the image block and the prediction block; a transform and quantization unit, which transforms and quantizes the residual to generate a quantization coefficient; an entropy coding unit, which entropy codes the quantization coefficient and the motion vector to generate a bit stream.
A method for storing a bit stream, comprising storing the bit stream in a storage medium, characterized in that the bit stream is generated by the method of claim 1.
A method for transmitting a bit stream, comprising transmitting the bit stream, characterized in that the bit stream is generated by the method of claim 1.
A computer-readable storage medium having a bit stream stored thereon, wherein the bit stream is generated by the method of claim 1.
Drafting Notes
(V) Section 7 of Chapter 9 of Part II on the examination of invention patent applications containing bitstreams
In order to adapt to the new situation of the rapid development of the streaming media industry, adapt to the new changes brought about by the continuous evolution of streaming media related technologies and application scenarios, respond to the demands of innovation entities to further strengthen patent protection for multiple links in the streaming media industry chain such as generation, storage, and transmission, and actively connect with international high-standard patent examination and protection rules, Section 7 “Related provisions on the examination of invention patent applications containing bitstreams” is added to Chapter 9 of Part II. The main contents include:
Examination of the object of protection of invention patent applications containing bitstreams
(1) Clarifying the circumstances in which invention patent applications containing bitstreams cannot be granted patent rights
Section 7.1.1 stipulates that if the subject matter of a claim only involves a simple bitstream, it is not an object of patent protection. If a claim, except for its subject name, all the contents that limit it only involve a simple bitstream, it is not an object of patent protection.
(2) Circumstances in which patent rights can be granted for invention patent applications that clearly include bitstreams
Section 7.1.2 stipulates that in the technical field of digital video encoding/decoding, if a specific video encoding/decoding method that generates a bitstream belongs to a technical solution in the sense of patent law, then the method for storing or transmitting the bitstream and the computer-readable storage medium for storing the bitstream defined by the specific video encoding/decoding method belong to the subject of patent protection.
Requirements for writing the specification of invention patent applications that clearly include bitstreams
Section 7.2 clarifies that the specification should fully disclose the specific video encoding/decoding method for generating a bitstream. If the subject matter of the protection involves the method for storing or transmitting the bitstream and the computer-readable storage medium for storing the bitstream, the specification should also make corresponding explanations to support the claims.
Clarify the requirements for the drafting of the claims of invention patent applications containing bitstreams
Section 7.3 clarifies that invention patent applications containing bitstreams generated by specific video encoding/decoding methods can be drafted as method, device and computer-readable storage medium claims, which is intended to regulate that the applicant should generally write the corresponding storage method, transmission method and/or computer-readable storage medium claims based on the specific video encoding/decoding method claim for generating the bitstream, by citing the method claim or including all the features of the method; at the same time, specific drafting examples are given.
It should be noted that, unlike the relatively concentrated industrial chain of the traditional communications industry, the industrial chain of the streaming media industry is relatively dispersed, with multiple links and entities such as generation, storage, and transmission. Therefore, the protection of technical themes involved in multiple links of the streaming media industry in this section is intended to adapt to the new situation and changes in the streaming media industry, and provide the right holder with the option of claiming rights to one of the links, so as to balance the interests of the right holder, implementer and the public, and ensure the sustainable development of the industry, rather than allowing the right holder to claim rights to multiple links of the industry and obtain licensing income that is disproportionate to their technical contributions.
Breaking Down the Bifurcated PTAB Review Process: What the USPTO’s Recent FAQ Drop Reveals
On March 26, 2025, the U.S. Patent and Trademark Office released a memorandum introducing a new interim process for handling institution decisions in inter partes reviews (IPRs) and post-grant reviews (PGRs). The Office just released a set of FAQs addressing questions about the memo.
The March 26 Memorandum (Memo) introduced a bifurcated framework for institution decisions that separates discretionary considerations from the substantive merits of a petition. This change is intended to streamline decision-making at the Patent Trial and Appeal Board (PTAB) while giving parties a formal opportunity to address discretionary denial factors directly to the Director.
Under the Memo, institution decisions are bifurcated into two phases. First, the Director, in consultation with at least three senior PTAB judges, evaluates whether institution should be denied based on discretionary grounds—such as those outlined in the Fintiv and General Plastic line of cases. If the Director determines that discretionary denial is not warranted, the matter proceeds to a PTAB panel, which evaluates the merits and other non-discretionary issues raised in the petition and preliminary response. This structure allows for early resolution of threshold issues while preserving the Board’s focus on statutory and evidentiary matters.
Timing is Everything
The bifurcated process applies to proceedings where the patent owner’s preliminary response deadline occurs after March 26, 2025. Patent owners who wish to argue for discretionary denial must file a separate discretionary denial brief within two months of the PTAB’s Notice of Filing Date Accorded. Petitioners may file a corresponding opposition one month later—on the same day the patent owner’s preliminary response is due. If no discretionary denial brief is filed, the case bypasses the Director and goes directly to a Board panel for a merits-based institution decision. The Director, after considering the petition, discretionary denial brief, opposition brief, and preliminary response (POPR), will issue a decision on discretionary considerations within 1 month of the last relevant paper filed.
There are a few important points on timing clarified by the FAQs. First, while parties may always submit early briefing, the parties may not stipulate to later due dates for filing the discretionary considerations briefing. Earlier filing of a discretionary denial brief does not alter timing for the petitioner’s opposition, which remains one month from the due date of patent owner’s brief, or of the Director’s decision. Second, if the patent owner filed its POPR, or the deadline for filing a POPR passed, on or before the Memo issued on March 26, 2025, the bifurcated process is not available, and a Board panel will proceed as it would have before the Process Memorandum issued.
Speak Now or Forever Hold Your Peace (Mostly)
If the patent owner fails to timely file a discretionary denial brief, the Director will not issue a decision on discretionary considerations. Instead, the case proceeds to directly to phase 2 for consideration of non-discretionary issues by the Board panel.
Importantly, the Office emphasizes a strict separation of issues between the two phases. Once the Director determines that discretionary denial is not appropriate, the Board panel will not consider papers filed by parties relating to discretionary considerations. Arguments related to discretionary denial must be confined to the discretionary denial brief and corresponding opposition. The FAQs make it clear that neither the Director nor the Board panel will consider discretionary-denial arguments raised in the POPR.
Conversely, merits-based arguments may only appear in the petition, preliminary response, and any authorized replies or sur-replies. The Board will not consider arguments that appear in the wrong phase of briefing, absent extraordinary circumstances. But if the petition fails to present sufficient challenges that meet the reasonable likelihood standard, the Board panel may address discretionary considerations in phase 2.
Here’s the exception, because the strengths/weaknesses of the merits are relevant, the parties may reference arguments in the petition and evidence of record. The parties’ discretionary briefing may also address claim construction if it is relevant to the discretionary considerations.
Yes Do-Overs!
Finally, the FAQs clarify how rehearing and Director Review will operate under the new system. Requests for rehearing on discretionary denials must be directed to the Director, while rehearing requests involving only the merits or other non-discretionary issues must be directed to the Board panel. When a request raises both discretionary and non-discretionary issues, the party must file a request for Director Review. For institution denials based on discretion, the party has 30 days to request rehearing or Director Review.
In sum, the USPTO’s interim guidance establishes a more structured approach to addressing discretionary-denial considerations at the PTAB. The bifurcated process gives patent owners a dedicated opportunity to present threshold arguments directly to the Director while allowing the Board to focus on merits once those threshold issues are resolved. Practitioners are advised to pay close attention to timing, briefing format, and the scope of issues raised to ensure compliance with the new requirements. The USPTO signaled that these FAQs may evolve with practice, so parties should continue to monitor for updates.
For further details, patent professionals are encouraged to review the Memorandum and FAQs and consider their influence your current and future IPR, PGR and/or litigation strategies and tactics.
China Launches Special Campaign to “Clear Up and Rectify the Abuse of AI”
On April 30, 2025, China’s Cyberspace Administration (CAC) launched a 3-month campaign to “clear up and rectify the abuse of AI technology” including using information that infringes on others’ intellectual property rights, privacy rights and other rights. Per the Cyberspace Administration, “the first phase will strengthen the source governance of AI technology, clean up and rectify illegal AI applications, strengthen AI generation and synthesis technology and content identification management, and promote website platforms to improve their detection and identification capabilities. The second phase will focus on the abuse of AI technology to create and publish rumors, false information, pornographic and vulgar content, impersonate others, engage in online water army [paid posters] activities and other prominent issues, and concentrate on cleaning up related illegal and negative information, and deal with and punish illegal accounts, multi-channel networks (MCNs) and website platforms.”
Per the CAC, in the first phase, the focus is on rectifying six prominent problems:
First, illegal AI products by failing to perform large model filing or registration procedures. Providing “one-click undressing” and other functions that violate laws and ethics. Cloning and editing other people’s voices, faces and other biometric information without authorization and consent, infringing on other people’s privacy.
Second, teaching and selling illegal AI product tutorials and products. Teaching tutorial information on how to use illegal AI products to forge face-changing videos, voice-changing audio, etc. Selling illegal “speech synthesizers” and “face-changing tools” and other product information. Marketing, hyping, and promoting illegal AI product information.
Third, lax management of training corpus. Using information that infringes on others’ intellectual property rights, privacy rights and other rights. Using false, invalid, and untrue content crawled from the Internet. Using data from illegal sources. Failure to establish a training corpus management mechanism, and failure to regularly check and clean up illegal corpus.
Fourth, weak security management measures. Failure to establish content review, intent recognition and other security measures that are commensurate with the scale of business. Failure to establish an effective illegal account management mechanism. Failure to conduct regular security self-assessments. Social platforms are unclear about the AI automatic reply and other services accessed through API interfaces, and do not strictly control them.
Fifth, the content identification requirements have not been implemented. The service provider has not added implicit or explicit content identification to deep synthetic content, and has not provided or prompted explicit content identification functions to users. The content dissemination platform has not carried out monitoring and identification of generated synthetic content, resulting in false information misleading the public.
Sixth, there are security risks in key areas. AI products that have been registered to provide question-and-answer services in key areas such as medical care, finance, and for minors have not set up targeted industry security audits and control measures, resulting in problems such as “AI prescribing”, “inducing investment”, and “AI hallucinations”, misleading students and patients and disrupting the order of the financial market.
The second phase focuses on rectifying seven prominent problems:
First, using AI to create and publish rumors. Fabricating all kinds of rumors and information involving current politics, public policies, social livelihood, international relations, emergencies, etc., or making arbitrary guesses and malicious interpretations of major policies. Fabricating and fabricating causes, progress, details, etc. by taking advantage of emergencies, disasters, etc. Impersonating official press conferences or news reports to publish rumors. Using content generated by AI cognitive bias to maliciously guide.
Second, using AI to create and publish false information. Splicing and editing irrelevant pictures, texts, and videos to generate mixed, half-true and half-false information. Blurring and modifying the time, place, and people of the incident, and rehashing old news. Creating and publishing exaggerated, pseudo-scientific and other false content involving professional fields such as finance, education, justice, and medical care. Using AI fortune-telling and AI divination to mislead and deceive netizens and spread superstitious ideas.
Third, using AI to create and publish pornographic and vulgar content. Using AI stripping, AI drawing and other functions to generate synthetic pornographic content or indecent pictures and videos of others, soft pornographic, two-dimensional borderline images such as revealing clothes and coquettish poses, or ugly and other negative content. Produce and publish bloody and violent scenes, distorted human bodies, surreal monsters and other terrifying and bizarre images. Generate synthetic “pornographic texts” and “dirty jokes” and other novels, posts and notes with obvious sexual implications.
Fourth, use AI to impersonate others to commit infringement and illegal acts. Through deep fake technologies such as AI face-changing and voice cloning, impersonate experts, entrepreneurs, celebrities and other public figures to deceive netizens and even market for profit. Use AI to spoof, smear, distort and alienate public figures or historical figures. Use AI to impersonate relatives and friends and engage in illegal activities such as online fraud. Improper use of AI to “resurrect the dead” and abuse the information of the dead.
Fifth, use AI to engage in online water army [paid posting] activities. Use AI technology to “raise accounts” and simulate real people to register and operate social accounts in batches. Use AI content farms or AI to wash manuscripts to batch generate and publish low-quality homogeneous writing to gain traffic. Use AI group control software and social robots to like, post and comment in batches, control the volume and comments, and create hot topics to be listed.
Sixth, AI products, services and applications violate regulations. Create and disseminate counterfeit and shell AI websites and applications. AI applications provide illegal functional services, such as creative tools that provide functions such as “expanding hot searches and hot lists into texts”, and AI social and chat software that provide vulgar and soft pornographic dialogue services. Provide illegal AI applications, generate synthetic services or sell courses, promote and divert traffic, etc.
Seventh, infringe on the rights and interests of minors. AI applications induce minors to become addicted, and there is content that affects the physical and mental health of minors in the minor mode.
The original text is available here (Chinese only).
Tell Us Your Secret: Case Dismissed for Failure to Identify Trade Secrets
The US Court of Appeals for the Tenth Circuit affirmed a district court’s grant of summary judgment in favor of the defendants for the plaintiff’s failure to identify the trade secrets at issue with sufficient particularity. Double Eagle Alloys, Inc. v. Hooper, Case No. 24-5089 (10th Cir Apr. 22, 2025) (Bacharach, Seymour, Phillips, JJ.)
Double Eagle and Ace Alloys are direct competitors and distributors of specialty metals for companies in the oil and gas industry. After working for Double Eagle for decades, including five years as an inside sales manager, Michael Hooper left to join Ace. As he departed, Hooper took with him 2,660 digital files downloaded from his Double Eagle computer to an external storage device. After discovering the download, Double Eagle sued Hooper and Ace for trade secret misappropriation and civil conspiracy. The parties cross moved for summary judgment.
Double Eagle argued that the files Hooper downloaded contained financial, technical, and business information that qualified as trade secrets. Double Eagle categorized the files as pump-shaft-quality (PSQ) specifications, pricing, and customer drawings. Ace argued that the alleged trade secrets were not protectable since Double Eagle shared the information with customers or posted the information online. The district court granted summary judgment to the defendants on all claims, holding that “Double Eagle failed to identify its alleged trade secrets with sufficient particularity and clarity to proceed to trial,” that it failed to present evidence of the information’s secrecy to support the misappropriation claim, and accordingly that there was no underlying tort on which to base the claim for civil conspiracy. Double Eagle appealed.
Double Eagle argued that the summary judgment grant was improper because there were genuine issues of material fact on the issue of whether it identified its trade secrets with sufficient particularity and whether the business information was confidential. Double Eagle also argued that the district court erred by not allowing it an opportunity to supplement the evidence in support of its claim. The Tenth Circuit disagreed and affirmed on all counts.
The Tenth Circuit agreed with the district court that Double Eagle failed to introduce evidence that its alleged trade secrets were “known only to a limited number of people, were not readily ascertainable, or were valuable because they were not widely known.” The Court noted that Double Eagle’s PSQ specifications were readily ascertainable through proper means, its pricing was shared with customers without any protection to prevent customers from sharing those prices, and the customer drawings originated from the customers and were not owned by Double Eagle.
The Tenth Circuit similarly agreed with the district court’s dismissal of the misappropriation claim, explaining that the same lack of secrecy that defeated the trade secret claim also defeated the misappropriation claim. Finally, the Court rejected Double Eagle’s argument concerning its ability to supplement the record because the district court invited the parties to submit briefing on the issues, including an opportunity to move for leave to submit more evidence, but Double Eagle chose not to do so. Having rejected Double Eagle’s arguments on the first two claims, the Court necessarily rejected the civil conspiracy claim for lack of an underlying tort in support of the alleged conspiracy.