China’s State Administration for Market Regulation Releases Top 10 Typical Cases of Intellectual Property Law Enforcement for 2024
On April 29, 2025, China’s State Administration for Market Regulation (SAMR) released the Top 10 Typical Cases of Intellectual Property Law Administrative Enforcement for 2024 (2024年知识产权执法十大典型案件). Administrative enforcement is an additional route to enforce intellectual property rights and is often faster than civil litigation. While fines and seizure are available, damages are not. It is also possible that SAMR will refer cases to the procuratorate for criminal prosecution.
A translation of SAMR’s summary follows. The original text is available here (Chinese only).
1. Market supervision departments of nine provinces (autonomous regions and municipalities) jointly investigated and dealt with the case of infringement of the exclusive right to use the registered trademark “Jimi” by Jiangxi Caiying Technology Co., Ltd. and others
Chengdu JmGO Technology Co., Ltd. discovered during market sales that Jiangxi Caiying Technology Co., Ltd. (hereinafter referred to as “Caiying” Company) and its related companies used the “JmGO Nuts” trademark on similar products, suspected of infringing its exclusive right to the “JmGO” registered trademark, causing serious impact on product sales. The infringement involved dozens of entities in processing, warehousing, packaging, sales and other links, across multiple provinces.
After receiving clues about the case, the Law Enforcement Inspection Bureau of the State Administration for Market Regulation immediately convened law enforcement backbones from market supervision departments in nine provinces (autonomous regions and municipalities), including Jiangxi, Guangdong, Beijing, Shanghai, Zhejiang, Jiangsu, Henan, Guangxi, and Sichuan, to jointly study and formulate a thorough action plan. At the same time, it coordinated with e-commerce platforms such as JD.com, Pinduoduo, Taobao, and Douyin to retrieve the sales records of “Jimi Nuts” suspected of infringing goods and collect the evidence of infringement by the parties. On March 6, 2024, the market supervision departments of nine provinces (autonomous regions and municipalities) took unified action to conduct surprise inspections on all the entities involved in the case, and verified the illegal acts of all relevant companies in one fell swoop. The State Administration for Market Regulation sent personnel to Jiangxi and Guangdong to supervise and guide on the spot. Based on the illegal facts found out by the centralized action, the State Administration for Market Regulation designated the Yichun Municipal Market Supervision Bureau of Jiangxi Province to conduct a unified investigation and handling of “Caiying” Company and the related companies controlled by it.
Upon investigation, it was found that Xiao XX, the actual controller of “Caiying” company, registered a total of 10 companies, commissioned others to produce projectors, projection screens and other products, used trademarks such as “Jimi Nuts” on the products and their packaging, and opened 25 online stores for sale on e-commerce platforms such as JD.com, Pinduoduo, Taobao, and Douyin. The Yichun Municipal Market Supervision Bureau of Jiangxi Province made a penalty decision in accordance with the law, confiscated the illegal income of 3.1434 million RMB from 10 companies including “Caiying”, imposed a fine of 1.9287 million RMB, and the total fines and confiscations were 5.0721 million RMB. In this case, “Caiying” company reached a settlement agreement with the right holder, admitted the infringement and compensated for the loss of 4 million RMB. Other companies involved in this case (processing, warehousing and packaging companies, etc.) will be further investigated and handled by the local market supervision department.
2. Beijing Municipal Market Supervision Bureau investigates and punishes Beijing Youyou Education Consulting Co., Ltd. for infringing the exclusive right to use the registered trademark “LEGO”
In May 2024, the Beijing Municipal Market Supervision Bureau received a tip-off from Lego Co., Ltd., stating that Beijing Youyou Education Consulting Co., Ltd. had infringed on the exclusive right to use a registered trademark. After receiving the tip-off, the Beijing Municipal Market Supervision Bureau quickly launched an investigation. When law enforcement officers conducted an on-site inspection at the business premises of Beijing Youyou Education Consulting Co., Ltd., they found that the company’s main business was education and training, which was the same as the trademark verification service items held by Lego Co., Ltd. At the same time, the company used the “乐高”, “LEGO” and ”” trademark logos on the signs of its business premises, classroom doorplates in the store, promotional posters, front desk, etc., and was unable to provide legal license documents for the use of these trademarks. Law enforcement officers questioned and investigated the person in charge of the company, and the person confessed to the use of the relevant trademarks. At the same time, law enforcement officers conducted a detailed analysis of the company’s operating data and determined that the illegal business volume totaled 3.5138 million RMB.
The act of a party using a trademark identical to a registered trademark on the same kind of goods without the permission of the trademark registrant constitutes an infringement of the exclusive right to a registered trademark as stipulated in Article 57 of the Trademark Law of the People’s Republic of China, and the circumstances are serious and suspected of criminal offenses. The Beijing Municipal Market Supervision Bureau will transfer the case to the judicial authorities for handling in accordance with the law.
3. The Market Supervision Bureau of Xindu District, Xingtai City, Hebei Province investigated and dealt with the case of infringement of the exclusive right to use the registered trademark “Huawei”
In December 2023, the Xindu District Market Supervision Bureau of Xingtai City, Hebei Province received a complaint from a consumer that the screen and battery of the Huawei mobile phone they purchased on the Douyin live broadcast platform “Tangtang Youxuan Second-hand Mobile Phone” and “Mijing Youxuan Second-hand Mobile Phone” had problems. The Xingtai Municipal Market Supervision Bureau and the Xindu District Market Supervision Bureau immediately set up a special task force to launch an enforcement investigation.
The Douyin store involved in the case, “Tangtang Optimal Used Phones”, is actually registered under Kuamoutang Network Technology Co., Ltd., and its principal is Mu. The other Douyin store involved in the case, “Mijing Optimal Used Phones”, is actually registered under MiXX Electronic Technology Co., Ltd., and its principal is Xue. Both stores claimed that they sold official genuine mobile phones of the “Huawei” brand through Douyin live broadcast rooms. It was found that the items involved in the case were assembled by the parties themselves without the authorization of the rights holder, and were infringing goods.
On March 26, 2024, the Xingtai Municipal Market Supervision Bureau and the Xingtai Municipal Public Security Bureau dispatched a number of law enforcement officers and police officers at the municipal and county levels, and divided them into 4 evidence collection and arrest teams to carry out a roundup operation simultaneously. 11 people involved in the case were arrested on the spot, 2 mobile phone assembly factories and 2 live broadcast rooms were destroyed, and the mobile phones involved in the case (Mate series, Pura series) and related accessories worth more than 3 million RMB were seized. The amount involved in the online sales of the two stores was as high as 16.408 million RMB.
The party’s act of selling goods that infringe the exclusive right to use a registered trademark constitutes an act of infringing the exclusive right to use a registered trademark as stipulated in Article 57 of the Trademark Law of the People’s Republic of China. As the amount involved is large, it is suspected of constituting a crime, and the law enforcement department has transferred the case to the judicial authority for handling in accordance with the law.
4. Shanghai Municipal Market Supervision Bureau investigates and punishes five companies and individuals including Shanghai Jixu Food Co., Ltd. for infringing the exclusive right to use the “Liuhe” registered trademark
In March 2024, based on reports from rights holders, the Shanghai Municipal Market Supervision Bureau and Suzhou Market Supervision Department launched a joint law enforcement operation, seizing 18 tons of infringing frozen poultry, more than 1,500 counterfeit packages and multiple infringing printing templates, with a total amount involved of more than 5.2 million RMB.
After investigation, it was found that from November 2023 to March 2024, Shanghai Jixu Food Co., Ltd. and Yu XX conspired to entrust relevant enterprises in Changzhou to print packaging boxes containing the Liuhe trademark. Subsequently, Yu used the above-mentioned counterfeit packaging boxes to pack low-priced single frozen chicken breasts and other products. Jixu Company purchased more than 100,000 boxes of the above-mentioned counterfeit products from Yu and sold them to Tang XX. Tang then sold them to the outside through relevant online platforms. The total amount involved in the case of the above-mentioned parties is more than 3.4 million RMB.
It was also found that Shanghai Nuoping Industrial Co., Ltd. purchased more than 30,000 counterfeit Liuhe trademarked packaging boxes from a Suzhou company and Shanghai Gujun Packaging Materials Co., Ltd., and used the counterfeit packaging boxes to pack low-priced single frozen chicken breasts and other products, and sold them through relevant e-commerce platforms, involving more than 1.4 million RMB. Shanghai Gujun Company produced and sold more than 230,000 counterfeit packaging boxes without authorization, involving more than 400,000 RMB.
The actions of the above five companies and individuals violated Article 57 of the Trademark Law of the People’s Republic of China. As the amount involved was large, they were suspected of committing a crime. The case handling department transferred the relevant cases to the public security organs for handling in accordance with the law. At present, the above parties have been prosecuted.
5. The Market Supervision Bureau of Longwan District, Wenzhou City, Zhejiang Province investigated and dealt with the case of Wenzhou Zunxiang Technology Co., Ltd. selling goods that infringed the exclusive right of registered trademarks
The Market Supervision Bureau of Longwan District, Wenzhou City, Zhejiang Province, investigated and dealt with the illegal behavior of Wenzhou Zunxiang Technology Co., Ltd. in selling goods that infringed the exclusive rights of registered trademarks in accordance with the law. The amount involved was more than 10 million RMB. As the party’s behavior was suspected of constituting a crime, the case has been transferred to the public security organs for handling.
At the beginning of 2024, the Market Supervision Bureau of Longwan District, Wenzhou City received reports from many consumers, reporting that Wenzhou Zunxiang Technology Co., Ltd. attracted customers through low-priced mobile phones online, and fabricated “operator subsidies” offline to induce consumers to exchange for Apple Bluetooth headphones. The headphones provided by one of the consumers were identified by Apple, and the outer packaging, printing details and production process were significantly different from the genuine ones. In response, law enforcement officers immediately launched an investigation into the store, extracted a large amount of electronic data on the spot, accurately locked more than 200 false mobile phone sales records and exchange evidence, and completely eradicated the illegal chain of “low-price traffic-induced exchange-high-price fake sales”. Combined with logistics data traceability and geographic information visualization technology, a network map of counterfeiting and selling counterfeit products covering five provinces including Zhejiang, Fujian, Jiangxi, and Guangdong was drawn, and sales and storage locations were accurately located.
In response to the illegal activities, the Longwan District Market Supervision Bureau and the public security organs set up a special task force to carry out a unified cross-provincial crackdown operation, successfully destroying 5 stores selling counterfeit goods and 5 storage locations, and seized more than 1,000 counterfeit Apple Bluetooth headsets and more than 5,000 infringing mobile phone cases on the spot. 32 criminal suspects were arrested, and the total amount involved in the case was more than 10 million RMB.
6. Anhui Province Fuyang Municipal Market Supervision Bureau investigates and punishes Gu Moumou and others for infringing the exclusive rights of registered trademarks such as “Arc’teryx”
In December 2023, the Market Supervision Bureau of Fuyang City, Anhui Province received a case clue that Fuyang Pengfei Clothing Co., Ltd. was suspected of producing infringing clothing. Law enforcement officers immediately launched an investigation and found that the company’s legal representative Zhang XX, in order to increase sales and expand profits, produced a total of 7,323 “Arc’teryx” jackets that infringed on the exclusive rights of others’ registered trademarks under the arrangement of the client Gu XX, involving a total amount of more than 1.44 million RMB.
Because the illegal facts of the case have reached the standard for criminal prosecution, the Fuyang Municipal Market Supervision Bureau transferred the case to the public security organs for investigation on December 28, 2023. Subsequently, the public security and market supervision departments set up a special task force to carry out joint law enforcement. From January to April 2024, the task force went to Ningbo, Anqing, Bozhou, Chizhou, Lu’an, Cangzhou, Langfang and other places to conduct investigations and tracking, seized a large number of infringing clothing, and successfully destroyed more than 20 production, warehousing and sales dens. It was found that since September 2019, Gu, without the permission of the trademark registrant, customized fabrics and accessories according to various well-known brands of clothing, produced counterfeit logos, and commissioned clothing processing factories in many provinces and cities to process clothing that infringed trademark brands such as “Arc’teryx”, “The North Face”, “Adidas”, “Gucci”, “Lululemon”, “Amy”, and “Balenciaga”, and then hired employees to promote and sell them. The amount involved in the case reached more than 200 million RMB. In April 2024, the procuratorate filed a public prosecution against Gu and others for the crime of counterfeiting registered trademarks. So far, 6 people have been sentenced and 15 people have been approved for prosecution.
7. The Market Supervision Bureau of Xiangyang City, Hubei Province investigated and dealt with the case of Shen’s gang producing and selling trademark-infringing “specially supplied wine”
In July 2024, the Market Supervision Bureau of Xiangyang City, Hubei Province received a report from the public that there were illegal production and sales of “special supply wine.” The bureau quickly launched the investigation procedure and established a joint working group with the public security department to jointly handle the case. On July 24, the joint working group launched a surprise operation after careful deployment, and conducted surprise inspections on multiple suspected production and storage locations, successfully destroying 2 major production dens and 10 storage dens, and at the same time destroyed 3 criminal gangs that produced and sold counterfeit well-known brand wines. Law enforcement officers seized more than 1,000 pieces of Moutai liquor with words such as “Great Hall of the People”, “Beijing West Hotel”, “Beijing Military Region” and “State Council” labeled “specially supplied”, as well as counterfeit Moutai, Wuliangye, Guojiao 1573, Baiyunbian and other brand finished liquors; more than 1,000 kilograms of counterfeit raw material base liquor; 5 sets of filling equipment, air pumps, rivet guns and other production tools and more than 210,000 packaging materials. The amount involved in the case was as high as more than 80 million RMB. The sales network covered 15 provinces and cities across the country, and 26 criminal suspects were arrested.
The party involved in the case, Shen’s gang, forged and used the above-mentioned “special supply” trademark logo, misleading consumers into thinking that it was a high-end product customized for a specific institution or occasion. In fact, these so-called “special supply wines” are just ordinary liquors, which are sold at high prices by attaching false labels and counterfeiting well-known brand liquors, seriously infringing on consumers’ right to know and right to choose. The party’s behavior constitutes an illegal act of infringing on the exclusive right of others to use registered trademarks. Because the value of the goods involved is huge and it is suspected of constituting a crime, the case has been transferred to the judicial authorities for handling.
8. The Jieyang Municipal Market Supervision Bureau of Guangdong Province investigated and dealt with the case of Wang XX producing watches with counterfeit registered trademarks of “ROLEX”, “RADO” and “FOSSIL”
In December 2023, the Jieyang Municipal Market Supervision Bureau of Guangdong Province, based on the clues of the report, jointly with the public security organs, inspected a den suspected of producing counterfeit watches of well-known trademark brands. 3,470 finished watches marked with the “ROLEX” logo, 900 dials (semi-finished products), 3,000 straps (semi-finished products), and 300 finished watches marked with the “RADO” and “FOSSIL” logos were found on the spot. The Jieyang Municipal Market Supervision Bureau filed a case on the same day and took administrative compulsory measures to seize the above-mentioned items involved in the case in accordance with the law.
Upon investigation, it was found that the parties, Mr. and Mrs. Wang XX, had hired five workers to process watches with the “ROLEX”, “RADO” and “FOSSIL” logos for them since June 2023 without obtaining a license to use the registered trademarks such as “ROLEX”, “RADO” and “FOSSIL”. According to the identification opinion issued by the domestic legal institution authorized by the right holder, the finished watches marked with the “ROLEX”, “RADO” and “FOSSIL” logos produced by the parties were not produced by the right holder or with its permission.
The party produced watches with “ROLEX”, “RADO” and “FOSSIL” trademarks without the permission of the trademark registrant, which constituted an illegal act of infringement of the exclusive right to use a registered trademark as stipulated in Article 57 (1) of the Trademark Law of the People’s Republic of China, with a value of 116.9465 million yuan. The Jieyang Municipal Market Supervision Bureau transferred the case to the judicial authorities for handling in accordance with the law. At present, the seven suspects have been transferred to the procuratorate for prosecution in accordance with the law.
9. Chongqing Youyang County Market Supervision Bureau and the public security organs jointly investigated and dealt with the case of Chen et al. selling goods that infringed the exclusive rights of registered trademarks such as “LV”
In January 2024, law enforcement officers from the Market Supervision Bureau of Youyang Tujia and Miao Autonomous County, Chongqing City, discovered during an inspection that the Balenciaga, Dior, and LV brand products sold by a store with the sign “Shark Luxury Buyer Store” were suspected of counterfeiting other people’s registered trademarks. Because the party Chen could not provide the authorization basis for the goods sold, law enforcement officers immediately seized more than 490 suspected infringing goods in accordance with the law. After identification by the right holder, the goods sold by the party were all counterfeit registered trademarks of others, and the value of the goods reached more than 2.5 million RMB. His behavior constituted an illegal act as stipulated in Article 57 (3) of the Trademark Law of the People’s Republic of China. Because the amount involved was large and suspected of being a crime, the Youyang County Market Supervision Bureau transferred the case to the public security organs for investigation.
After investigation, it was found that since 2019, the suspects Zhou, Luo, Wen and others have set up processing factories in Guangdong to produce counterfeit brand clothing, bags, and footwear products, and wholesaled them to Chen and others through logistics delivery, and then sold them through e-commerce platforms, offline physical stores, and online social media. From April to May 2024, the market supervision department and the public security organs jointly dispatched more than 60 law enforcement personnel to Chongqing, Guangdong, Fujian, Hunan and other places to carry out case investigation and handling, destroying 5 counterfeiting “black factories” and 18 “black dens”, and seized more than 75,000 counterfeit clothing and bags, more than 20,000 semi-finished products, and more than 80 sets of counterfeiting equipment. The amount involved is as high as more than 300 million RMB. At present, 14 people have been transferred for prosecution, and the case is under further investigation.
10. The Market Supervision Bureau of Luzhou City, Sichuan Province investigated and dealt with the case of Luzhou Brothers Yijia Decoration Engineering Co., Ltd. infringing the exclusive right to use the registered trademark “Brothers Decoration”
In May 2024, Chongqing Municipal Market Supervision Bureau received a report from Chongqing Brothers Decoration Engineering Co., Ltd. (hereinafter referred to as the right holder), claiming that Luzhou Brothers Yijia Decoration Engineering Co., Ltd. (hereinafter referred to as the party) infringed its exclusive right to use the registered trademark No. 52642360 “Brothers Decoration”. As the party is located in Luzhou City, Sichuan Province, Chongqing Municipal Market Supervision Bureau and Sichuan Provincial Market Supervision Bureau held a joint law enforcement cooperation meeting within the framework of Sichuan-Chongqing cooperation to guide the handling of the case, and handed the case over to Luzhou Municipal Market Supervision Bureau for handling.
According to the investigation by the Luzhou Municipal Market Supervision Bureau, the party concerned was established on March 12, 2024 and engaged in interior decoration services. In April 2024, it commissioned an advertising company to replace the “Yi Ge Decoration” on the billboard on the facade of the building with “Brothers Decoration”; and replaced the “Thangka Decoration” above the entrance hall, on the floor distribution sign, and on the front wall of the elevator room with “Brothers Decoration”.
The “Brother Decoration” logo used by the party in advertisements, shop signs and contracts is exactly the same as the registered trademark No. 52642360 “Brother Decoration” in terms of language, text composition, font, arrangement order, etc., and is the same trademark. It was also found that the party signed 23 contracts with consumers, with a total contract amount of 2.74 million RMB. The party’s use of the same logo as the registered trademark of the right holder in advertisements, shop signs and contracts without permission constitutes an infringement of the exclusive right to a registered trademark as stipulated in Article 57 (1) of the Trademark Law of the People’s Republic of China. Because the party is suspected of committing a crime, the Luzhou Municipal Market Supervision Bureau has transferred the case to the public security organs for handling.
Alice Patent Eligibility Analysis Divergance before USPTO and District Court: Federal Circuit Clarifies Limits on Relying on USPTO Findings in § 101 Eligibility Disputes
In our prior article, we discussed instances in which the U.S. Patent and Trademark Office (USPTO) and the district courts made different findings with regard to patent eligibility under 35 U.S.C. § 101. A recent nonprecedential Federal Circuit decision, Aviation Capital Partners, LLC v. SH Advisors, LLC, No. 24-1099 (Fed. Cir. May 6, 2025), highlights a critical procedural point: District courts are not required to accept findings made by the USPTO as true at the pleading stage — unless those findings are specifically alleged in the complaint.
This issue came to the forefront on appeal after the Delaware District Court dismissed Aviation Capital’s patent infringement complaint under Rule 12(b)(6), finding the asserted patent claims ineligible under § 101. The plaintiff-appellant, Aviation Capital Partners (doing business as Specialized Tax Recovery (“STR”)), argued on appeal that the district court erred by failing to accept the USPTO’s prior eligibility analysis, which favored patent eligibility, as a factual finding at the motion to dismiss stage.
Specifically, STR contended that the USPTO’s conclusion — made during prosecution — that the claims were “integrated into a practical application” and “contained significantly more than an abstract idea” should have been accepted as a true factual finding by the District Court as part of deciding the motion to dismiss. But the Federal Circuit rejected that argument outright, stating:
STR additionally argues that, in deciding the motion to dismiss, the district court was required to assume as true the Patent Office’s “factual finding that the claims were integrated into a practical application and contained significantly more than an abstract idea.” Appellant’s Br. 23–25. We disagree. “[F]or the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added). Here, the complaint included no factual findings made by the Patent Office. J.A. 16–32; Oral Arg. at 4:38–5:45 (complaint alleged the Patent Office made two legal determinations but alleged no factual findings). Accordingly, the district court did not err by declining to accept as true any unalleged factual findings that the Patent Office may have made in its § 101 eligibility analysis.[1]
This passage underscores the procedural rigor applied to motions to dismiss: The court is bound only to the facts actually pled in the complaint. While STR tried to import the examiner’s analysis into the record, the Federal Circuit made clear that any “factual findings” by the USPTO must be explicitly alleged for a district court to credit them at the motion to dismiss stage.
Implications for Litigants and Drafting Complaints Where Examiner Made Comments Regarding § 101 Eligibility
This ruling serves as a practical guidepost for practitioners navigating § 101 disputes post-Alice. Litigants cannot assume that favorable examiner conclusions — such as an “integration into a practical application” — will be treated as facts unless those determinations are squarely and specifically alleged in the complaint.
The USPTO’s current guidance instructs examiners to evaluate whether a claim is “integrated into a practical application” and whether it includes “significantly more” than an abstract idea — criteria that may allow applications to clear the § 101 hurdle during prosecution. Yet, as Aviation Capital confirms, the deference afforded to such examiner determinations may vary, and on a Rule 12(b)(6) motion, only factual allegations specifically made in the complaint must be taken as true. This begs the question — if a patent owner explicitly alleges factual findings made by an examiner during prosecution regarding § 101, is that sufficient to defeat a motion to dismiss? Though nonprecedential, Aviation Capital suggests as much.
Takeaway
The Aviation Capital decision is a sharp reminder that litigators must be deliberate in pleading factual support for eligibility. To preserve arguments based on examiner findings, those examiner findings must be more than background — they must be alleged facts in the complaint, not just cited conclusions.
Otherwise, courts remain free to assess eligibility from a clean slate. And as this decision reaffirms, that assessment may diverge from what the USPTO previously concluded.
[1] Aviation Capital Partners, LLC v. SH Advisors, LLC, No. 24-1099 at 7 (Fed. Cir. May 6, 2025).
Compelling Rationale for Producing Proprietary Products in U.S. Found in USTR’s Special 301 Report on IP Protection and Enforcement Abroad (Part I)
While the current Trump Administration has based its global trade war on trade imbalances stemming from unfair trade practices of foreign countries, its weapon of choice—increased tariffs—is designed to encourage businesses to relocate manufacturing operations to the U.S., thereby boosting American employment and industrial capacity. The U.S. Trade Representative’s 2025 Special 301 Report, issued on April 29, provides an independent justification for onshoring or reshoring manufacturing, namely the failure of certain trading partners to adequately protect and enforce intellectual property (IP) rights of U.S. IP holders within their borders.
The Special 301 Report is an annual report that evaluates the adequacy and effectiveness of IP protection and enforcement among U.S. trading partners. USTR requested written submissions from the public through a notice published in the Federal Register on December 6, 2024. USTR later conducted a public hearing that provided the opportunity for interested persons to testify before the interagency Special 301 Subcommittee of the Trade Policy Staff Committee (TPSC) about issues relevant to the review. The hearing featured testimony from many witnesses, including representatives of foreign governments, industry, and non-governmental organizations.
USTR reviewed more than 100 trading partners for this year’s Special 301 Report and placed 26 of them on the Priority Watch List or Watch List. The countries on these watch lists are the “countries that have the most onerous or egregious acts, policies, or practices and whose acts, policies, or practices have the greatest adverse impact (actual or potential) on relevant U.S. products.” In this year’s report, trading partners on the Priority Watch List present the most significant concerns regarding insufficient IP protection or enforcement or actions that otherwise limited market access for persons relying on intellectual property protection. Eight countries are on the Priority Watch List: Argentina, Chile, China, India, Indonesia, Mexico, Russia, and Venezuela. According to the report, these countries will be the subject of “particularly intense bilateral engagement during the coming year.” For those failing to address U.S. concerns, the report warns, “USTR will take appropriate actions, which may include enforcement actions under Section 301 of the Trade Act or pursuant to World Trade Organization (WTO) or other trade agreement dispute settlement procedures.”
The 2025 Special 301 report further notes that an important part of the mission of USTR is to support and implement the Administration’s commitment to protect American jobs and workers and to advance the economic interests of the United States. “Fostering innovation and creativity is essential to U.S. economic growth, competitiveness, and the estimated 63 million American jobs that directly or indirectly rely on intellectual property (IP)-intensive industries.” These include manufacturers, technology developers, apparel makers, software publishers, agricultural producers, and producers of creative and cultural works. “Together, these industries generate 41% of the U.S. gross domestic product (GDP). The 47.2 million workers that are directly employed in IP-intensive industries also enjoy pay that is, on average, 60% higher than workers in non-IP-intensive industries.”
According to the report, a common problem with those countries on the Priority Watch List is IP infringement:
IP infringement, including patent infringement, trademark counterfeiting, copyright piracy, and trade secret theft, causes significant financial losses for right holders and legitimate businesses. IP infringement can undermine U.S. competitive advantages in innovation and creativity, to the detriment of American workers and businesses. In its most pernicious forms, IP infringement endangers the public, including through exposure to health and safety risks from counterfeit products, such as semiconductors, automobile parts, apparel, footwear, toys, and medicines. In addition, trade in counterfeit and pirated products often fuels cross-border organized criminal networks, increases the vulnerability of workers to exploitative labor practices, and hinders sustainable economic development in many countries.
Inadequate and ineffective IP protection and enforcement is hardly a new complaint by the U.S. government regarding trading partners such as China—it is a chronic problem. Still, the USTR Special 301 Report should serve as a warning to U.S. IP holders that these IP threats are real and not going away, at least anytime soon. While sourcing innovative products from lower cost countries with less regulatory burdens supports short-term profitability objectives, it can come at a steep long-term cost as many companies have learned. The loss or diminution of IP rights due to substandard IP protection and enforcement regimes abroad can cause significant damage to enterprise value, including enabling competition by infringers to rise up. This constant threat in the new “America First” era in which higher tariffs are the norm, however, may cause IP-intensive businesses to rethink their sourcing strategy and decide to onshore or reshore the production of proprietary products or components. Though the U.S. IP laws are imperfect, they are still considered the gold standard by many, including the U.S. Chamber of Commerce, and thus provide a better support system for long-term protection and enforcement of IP and financial success.
Recentive v. Fox: Machine-Learning Claims Fail to Make the Grade
The patent eligibility of claims involving the use of machine learning (ML) was recently considered by the US Court of Appeals for the Federal Circuit (CAFC) in Recentive Analytics, Inc. v. Fox Corp., Case No. 2023-2437 (Fed. Cir. Apr. 18, 2025). In its opinion, the CAFC affirmed the grant of Fox’s motion to dismiss on the ground that the four patents at issue — US Patent Nos. 10,911,811, 10,958,957, 11,386,367 and 11,537,960 — are ineligible under 35 U.S.C. § 101. The panel held that claims that merely recite the application of generic machine learning techniques to a new data environment without a technological improvement are patent ineligible under 35 U.S.C. § 101. Takeaways from the opinion include:
ML claims are not made patent eligible under 35 U.S.C. § 101 simply because they perform human tasks with greater speed and efficiency.
A general use of ML in new data environments does not integrate the judicial exception into a practical application under Prong Two of Step 2A of the United States Patent and Trademark Office’s (USPTO) subject matter eligibility analysis. See M.P.E.P. 2106.05(h).
Iteratively training or dynamically adjusting an ML model is itself insufficient to show a technological improvement.
If a patentee argues a technological improvement, the claims and specification should describe how the improvement was accomplished; in the case of ML, this may be the steps by which ML achieves the improvement.
This decision highlights the importance of patent drafting and strategic prosecution in creating robust patent claims that survive inevitable § 101 challenges in machine-learning applications. Although the Recentive ruling is not a drastic shift from patent-eligibility at the USPTO and in the courts, it provides an additional basis for examiners and judges to attack ML claims. Practitioners must be careful not to characterize and claim the ML aspects of an invention like the claims invalidated in the Recentive patents. The court stated that the Recentive claims “do not delineate steps through which the machine learning technology achieves an improvement.”
Indeed, the M.P.E.P. counsels applicants to describe an improvement in technology in the specification and requires that the claim itself must reflect the disclosed improvement. See M.P.E.P. §§ 2106.04(d)(1) and 2106.05(a). This ruling suggests that when discussing and claiming technical details in patent applications, it’s crucial to demonstrate a genuine technological improvement beyond the mere application of known techniques. Simply detailing the use of existing methods in a new context without showing how they advance the technology will likely be insufficient for patent eligibility. Recentive teaches that applicants should avoid characterizing an ML model as generic or suggesting any model is “suitable.” Instead, emphasis should be placed on the modifications to the ML model for operability in the invention.
Moreover, although training and adjusting an ML model is necessary for implementation, these activities alone will not provide the necessary technological improvement for patent eligibility.
Finally, applicants should keep in mind that the Recentive ruling does not address other routes to patent eligibility, such as improvements to the functioning of a computer, use with a particular machine or manufacture that is integral to claim, and other strategies described in M.P.E.P. § 2106.
AI Governance Remains Critical Despite Political Pendulum Swings
Businesses increasingly rely on AI and generative AI for myriad uses. A new body of “AI law” is forming—and some legal requirements are now live. AI governance is a mandatory compliance function right now rather than next quarter or next year.
AI law is a patchwork across jurisdictions and can be hard to pin down. While some jurisdictions are enacting new laws, others are pulling back. As the political pendulum continues to swing, regulatory retrenchment is among the key themes coming into focus in 2025.
Some hardline AI regulatory regimes that dominated headlines in 2024 are being walked back. For example, at the U.S. federal level, the Trump administration has undone Biden-era AI executive orders, and federal agencies are recalibrating enforcement priorities accordingly. Consistent with broader deregulation impacts, observers expect that the FTC, SEC, and other agencies will focus primarily on clear cases of fraud, rather than pursuing broader or more innovative regulatory actions.
At the state level, the Colorado AI Act is under scrutiny for possible amendments, including through a new bill introduced in April 2025. Meanwhile, the governors of California and Virginia recently vetoed high-profile AI bills. And the U.S. House Energy and Commerce Committee proposed a 10-year moratorium on the enforcement of state AI laws in a recent draft budget reconciliation bill. Across the pond, the EU Commission recently withdrew the draft AI Liability Directive and is reportedly considering amendments to the EU AI Act to soften certain requirements.
But AI regulation is not dead. Newly enacted state laws in the U.S. (e.g., California, Illinois, New York, Utah) address algorithmic discrimination and automated decision-making; disclosure of AI use; impersonation, digital replicas, and deepfakes; watermarking of AI-generated content; data privacy and biometric data; and more. State attorneys general (e.g., California, New Jersey, Oregon) have reiterated that they will enforce existing laws against unlawful uses of AI. And, of course, the AI “copyright war”—testing the boundaries of copyright infringement and fair use for AI training and outputs—wages on in dozens of lawsuits in the U.S. and elsewhere.
The first requirements of the EU AI Act went live in February 2025. For example, companies using AI within the EU are now subject to the “AI literacy” requirement mandating “measures to ensure, to their best extent, a sufficient level of AI literacy” for employees or others who operate or use AI systems. The AI Act is extraterritorial. It applies to U.S. companies using AI systems within the EU or whose AI systems produce outputs intended for use in the EU. Employee training regarding the responsible use of AI is now mandatory for such companies.
Bottom line: while there may be a trend towards softening AI regulation in some areas, this is not a universal truth, and enterprise AI governance remains essential. Some new “AI law” requirements are now live, while others will be soon. In addition, regulators, state AGs, and plaintiffs will seek to apply existing laws to new technology. And, of course, there’s the potential self-inflicted wounds (like data leakage) and the reputational and public relations risks from an AI-powered snafu.
Luckily, there are some common threads in the AI regulatory thicket, and established guidance may ease the governance burden. Voluntary AI compliance frameworks like the NIST AI RMF and ISO/IEC 42001:2023 not only provide useful, detailed guidance for responsible AI governance, but they also form the basis of statutory safe harbors or affirmative defenses under laws like the Colorado AI Act. They provide a wise starting point for compliance programs, in addition to choosing AI model providers, models, and use cases wisely.
Luckily, there are some common threads in the AI regulatory thicket, and established guidance may ease the governance burden.
Estoppel Estopped?
The Federal Circuit recently resolved a split among the district courts whether patent infringement defendants who bring inter partes review (IPR) challenges are estopped from raising new prior art challenges in a co-pending district court litigation. While some district courts had earlier found estoppel to have broad effect, and thus prevent challenges based on products on sale or public use, the Federal Circuit’s decision means that estoppel is limited only to challenges based on patents or printed publications, opening the door to use patents and publications to provide evidence of what subject matter was “on sale” or “in public use.”
The Court’s precedential decision focused on the interpretation of 35 U.S.C. § 315(e)(2), which governs IPR estoppel. The statute prevents a petitioner from asserting in district court that a patent claim is invalid on any ground that the petitioner raised or reasonably could have raised during the IPR. The court clarified that “grounds” refer to the theories of invalidity available under sections 102 and 103, specifically those based on prior art consisting of patents or printed publications.
In this case, the defendant challenged the validity of the asserted patent by arguing that a product, the DiskOnKey System, was “known or used by others, on sale, or in public use”—grounds that statutorily could not have been raised during the IPR because they do not rely solely on patents or printed publications. The court held that IPR estoppel does not preclude a petitioner from asserting these “statutory grounds” of invalidity in district court, as they are distinct from those “statutory grounds” that could be raised in an IPR even if they are based on the same prior art references. In other words, the factual basis for the “statutory grounds” raised in district court can include the same factual basis that was used in the IPR proceeding if used to show the structure and operation of prior art systems and devices that were “in use.”
The Court’s interpretation aligns with previous decisions that emphasized Congress’s intent to limit IPR proceedings to challenges based on patents and printed publications. This decision reinforces the understanding that estoppel applies only to grounds that could have been raised in an IPR, not to the evidence used to support those grounds.
This decision has important implications for patent litigation strategy and the use of IPRs to streamline invalidity issues. It underscores the limitations of IPR estoppel, allowing parties to introduce evidence of public use, sales, or knowledge and use by others in district court even if the same evidence formed the basis of the challenge in the IPR proceeding. This distinction provides a broader opportunity for challenging patent validity.
California Supreme Court Prohibits Contractual Limitation of Liability Clauses for Intentional Misconduct
In New England Country Foods, LLC v. VanLaw Food Products, Inc., the California Supreme Court recently held that California Civil Code section 1668 prohibits contractual limitation of liability clauses that limit liability for harm caused by intentional misconduct.
In pertinent part, Section 1668 provides:
“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
Manufacturer VanLaw was sued by a barbecue sauce company for allegedly trying to copy its barbecue sauce and sell it to Trader Joe’s. New England Country Foods’ claims sounded both in contract and tort. In response, VanLaw argued that a contract between the parties limited damages for injuries caused by intentional actions and were therefore against public policy.
In response, the plaintiff asserted that the contractual limitation of liability provision was not enforceable pursuant to California Civil Code Section 1668 because it it permitted the defendant to engaged in intentional tortious conduct with impunity.
The applicable limitation on damages clause stated, in pertinent part:
“In no event will either party be liable for any loss of profits, loss of business, interruption of business, or for any indirect, special, incidental or consequential damages of any kind, even if such party has been advised of the possibility of such damages.”
After its contract with Trader Joe’s had expired, NECF discovered emails between VanLaw and Trader Joe’s that purportedly stated that the former intended to copy the barbecue sauce. NECF then initiated legal action against VanLaw seeking lost profits and punitive damages. NECF’s claims included breach of contract, intentional and negligent interference with prospective economic relations, intentional interference with contractual relations and breach of fiduciary duty.
The U.S. District Court for the Central District of California dismissed the plaintiff’s complaint, reasoning that the applicable contract limited the parties remedies to direct damages or injunctive relief. The court permitted NECF to amended its complaint by seeking “remedies permitted under” the contract or “plead why the available remedies are unavailable or so deficient as to effectively exempt Defendant from liability.”
In its amended complaint, NECF stated, in pertinent part:
“Upon information and belief, all of Plaintiff’s harm from the wrongful conduct alleged herein is a form of lost profits (both past and future). Further, the only possible harm to Plaintiff from the wrongs committed by Defendant are a loss of profits.”
Plaintiff further asserted that the contractual limitation of liability provision “would completely exempt Defendant from liability for the wrongs alleged.” NECF asserted that the subject contractual provision was voidable as per California Civil Code Section 1668.
The complaint was once again dismissed by the district court which reasoned that the contractual provision substantially limiting damages for willful tortious conduct was valid and agreed upon.
NECF appealed to the case to the Ninth Circuit that, in turn, referred the issue to the California Supreme Court to determine whether the provision was enforceable pursuant to California Civil Code Section 1668.
According to the California Supreme Court explained, Section 1668 is intended to “vindicate social policy” by precluding parties from “granting themselves licenses to commit future aggravated wrongs.” The court noted a different, recent California case similarly held that the existence of a contractual relationship between two parties does not mean one party can tortiously injure the other but limit its liability to a contract remedy.
The court opined that it may be possible to release ordinary negligence, but not gross negligence or willful conduct.
For ordinary negligence claims, the court cited to legal precedent that previously held that contractual limitations of liability for ordinary negligence may be prohibited if they affect the public interest as assessed under various, enumerated factors.
Consequently, the California Supreme Court held that, regardless of the relative sophistication of the parties, the contractual limitation of liability clause was not enforceable because it violated public policy and Section 1668 of the California Civil Code. Note, that the court stated that its holding applied only to the extent the claims at issue involve a tort claim independent of the parties’ contract.
Parties negotiating contracts should be aware of this decision, particularly when considering choice of law provisions.
A Quest Against Middle-earth: Lord of the Fries Successfully Registers LORD OF THE Mark
The intellectual property rights owner of The Lord of the Rings franchise, Middle-earth Enterprises, LLC (Middle-earth Enterprises) has renewed its pursuit against Lord of the Fries IP Pty Ltd (Lord of the Fries), having recently appealed the Australian Trade Marks Office’s decision allowing the registration of the word mark LORD OF THE filed by Lord of the Fries. We discuss below the key issues in dispute in the trade mark opposition filed by Middle-earth Enterprises.1
Lord of the Fries, a well-known Australian vegan fast-food chain, applied to register the word mark LORD OF THE in classes 29 and 30 for foodstuffs.
Middle-earth Enterprises opposed the LORD OF THE mark on multiple bases, including that the mark was deceptively similar to its LORD OF THE RINGS word mark registered in class 30. Middle-earth Enterprises also sought to rely on the reputation of its The Lord of the Rings franchise, alleging that registration of LORD OF THE as a trade mark would cause confusion, that the mark was registered in bad faith and that the trade mark is contrary to consumer law.2
This case highlights how the overall impression conveyed by the mark is central to the question of deceptive similarity—the fact that LORD OF THE was wholly incorporated in LORD OF THE RINGS was not determinative. The decision also reinforces how general brand recognition and reputation alone is not enough to create a blanket protection across all goods and services. The approach is consistent with other recent decisions of IP Australia.
LORD OF THE vs LORD OF THE RINGS—Not Substantially Identical or Deceptively Similar
An application must be rejected if the mark is substantially identical with or deceptively similar to an earlier registration in respect of similar goods or closely related services.
Adopting the well-accepted side-by-side analysis, the Delegate considered that LORD OF THE was not substantially identical to LORD OF THE RINGS. The absence of the term “rings,” which was an obvious essential feature of Middle-earth Enterprises’ mark, created a total impression of dissimilarity.
On the question of deceptive similarity, the Delegate affirmed that the reputation of LORD OF THE RINGS was not a relevant factor.3 Central to the finding against deceptive similarity was the meaning of the phrase “LORD OF THE.” At [34] the Delegate stated:
The phrase ‘lord of the’ has a meaning of having power, authority or mastery over a particular domain. The number of possible domains are essentially infinite, noting though the popular uses of the domains ‘flies’ (as in the book), ‘dance’ (the popular Irish dance company) and ‘fries’ (the use by [Lord of the Fries]). It does not obviously bring to mind any particular domain, let alone ‘rings’.
THE LORD OF THE RINGS’ Reputation was not Enough
Middle-earth Enterprises produced extensive evidence relating to the significant and substantial reputation acquired in its THE LORD OF THE RINGS mark in Australia. However, the Delegate determined that such reputation was limited to books, movies and video games, and did not extend to foodstuffs (class 30). In fact, the only evidence of use provided by Middle-earth Enterprises in connection to foodstuffs in Australia was “a single marketing campaign to promote the movie series that took place approximately 20 years before the relevant date.”4
Accordingly, Middle-earth Enterprises sought to rely on the reputation and fame of LORD OF THE RINGS generally to support its argument of consumer confusion. Rejecting Middle-earth Enterprises’ contention, the Delegate considered that such an approach would implicitly afford the owner of a famous mark a monopoly far beyond the scope of the trade marks system.
Middle-earth Enterprises’ insufficient reputation in class 30 saw the Delegate find that consumer confusion was “highly unlikely to arise” in the present case, as there was “no realistic prospect” that a consumer faced with fries branded as LORD OF THE “would be caused to wonder if [Middle-earth Enterprises] had expanded into fast food.”5 The Delegate observed that “a sufficient degree of respect” must be afforded to the consuming public’s ability “to determine the difference between a piece of licensed intellectual property and an indicator of the source of their fast food.”6
The Delegate also considered and ultimately dismissed the opposition grounds relating to ownership, bad faith, and misleading and deceptive conduct.
Footnotes
1 Middle-earth Enterprises, LLC v LORD OF THE FRIES IP PTY LTD [2025] ATMO 48 (4 March 2025) (Middle-earth v LORD OF THE FRIES), accessible at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/ATMO/2025/48.html.
2 see sections 42(b), 60 and 62A of the Trade Marks Act 1995 (Cth).
3 at [30]-[32] of Middle-earth v LORD OF THE FRIES, citing Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [49].
4 at [49] of Middle-earth v LORD OF THE FRIES.
5 at [55] of Middle-earth v LORD OF THE FRIES.
6 at [55] of Middle-earth v LORD OF THE FRIES.
Copyright Office Report on Training AI and Fair Use
The Copyright Office released a “Pre-publication” version of Part 3 of its Report on Copyright and AI. Coincidentally (?) Shira Perlmuter, the Register of Copyrights, was fired amid a shakeup at the Copyright Office. The Report was also supposed to address infringement issues, but did not. Those issued will now be addressed in a Part 4 of the Report.
A more detailed summary will be provided, but some high level takeaways are as follows.
There is no per se rule on whether training AI on copyrighted content is infringement/Fair Use. It will be a cases-by-case analysis.
Each “use” of copyrighted content needs to be considered. Several stages in the development of generative AI involve using copyrighted works in different ways that implicate the owners’ exclusive rights. Each needs to be considered separately. Different end uses may yield different results.
The fair use determination requires balancing the multiple statutory factors in light of all relevant circumstances. But the first and fourth factors will often be most significant. Nothing new here.
Various uses of copyrighted works in AI training are likely to be transformative. The extent to which they are fair, however, will depend on what works were used, from what source, for what purpose, and with what controls on the outputs—all of which can affect the market. Nothing really new here. Whether a work was pirated or legally obtained can be considered.
The Report indicates that voluntary licensing and extended collective licensing should be considered- no compulsory schemes or new legislation at least for now.
Perhaps the most controversial part of the Report, in my opinion, is the breadth of the fourth fair use factor – the effect of the use upon the potential market for or value of the copyrighted work.
This section evaluates different ways in which the use of copyrighted works for generative AI can affect the market for or value of those works, including through lost sales, market dilution, and lost licensing opportunities. It also addresses broader claims that the public benefits of unlicensed training might shift the fair use balance.
The Office’s view is that the statute on its face encompasses any “effect” upon the potential market. The speed and scale at which AI systems generate content pose a serious risk of diluting markets for works of the same kind as in their training data – not just competition for sales of an author’s works. Market harm can also stem from AI models’ generation of material stylistically similar to works in their training data, despite noting that copyright does not protect style.
The report makes clear that using certain “guardrails” could reduce the likelihood of a finding of infringement.
The Report assesses various infringement considerations with the use of Retrieval Augmented Generation (RAG).
This is not even close to a complete summary of the 113 page report. But I am working on a more detailed summary.
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A Line in the Sand: Federal Circuit Bounds IPR Estoppel in Ingenico v. IOENGINE
In a significant development for patent litigants, the Federal Circuit in Ingenico Inc. v. IOENGINE, LLC, affirmed an important limitation on the scope of IPR estoppel under 35 U.S.C. § 315(e)(2). Specifically, the court held that estoppel stemming from inter partes reviews (IPR) applies only to grounds based on patents and printed publications—not to patents or printed publications evidencing other grounds that could not have been raised during the IPR.
This ruling upholds a Delaware jury verdict that invalidated IOENGINE’s flash drive patents based on device prior art, despite Ingenico having previously pursued IPR on the patent claims. The decision resolves a split among district courts about IPR estoppel and the proper interpretation of the term “ground” in the estoppel provisions of the Patent Act. The decision reinforces statutory boundaries and offers clarity on how estoppel provisions interact with district court litigation strategy.
The Statutory Framework: What § 315(e)(2) and § 311(b) Say
35 U.S.C. § 315(e)(2) estops a petitioner from asserting in district court “any ground that the petitioner raised or reasonably could have raised during that inter partes review.” The statutory aim is to prevent piecemeal litigation and encourage efficient resolution of patent validity through the PTAB.
But 35 U.S.C. § 311(b) limits what grounds can be raised in an IPR: only those “only on the basis of prior art consisting of patents or printed publications.” This limitation became central in Ingenico.
The Case: Ingenico v. IOENGINE
Ingenico filed a declaratory judgment action against IOENGINE and filed IPR petitions challenging IOENGINE’s patents related to secure portable devices (e.g., USB flash drives). The IPRs resulted in a finding that certain of the challenged claims were unpatentable. In the district court litigation, Ingenico ultimately prevailed at trial by invalidating the remaining claims based on prior art that included sale or public use of physical devices—evidence that could not have been raised in an IPR.
IOENGINE argued that such invalidity grounds were barred by IPR estoppel because the device evidence was entirely cumulative and substantively identical to accompanying instructions and screenshots, which IOENGINE argued are printed publications that reasonably could have been raised during the IPR. The district court rejected this argument, and the Federal Circuit affirmed.
The Federal Circuit’s Ruling: Estoppel Stops at Grounds Based on Printed Publications
The Federal Circuit focused on the meaning of “ground” in § 315(e)(2), noting that § 315(e)(2) must be read in conjunction with § 311(b), which defines the universe of permissible IPR grounds. The panel emphasized that under 35 U.S.C. § 311(b), Congress intentionally limited an IPR’s scope to invalidity challenges based on “prior art consisting of patents or printed publications.” Accordingly, grounds not based on patents or printed publications (e.g., grounds based on device art and the like) are not within the scope of IPR estoppel.
But what about patents and printed publications relating to the device used to challenge the claims in the district court? The panel addressed this, noting that a “ground” is not the prior art asserted, and Congress under § 315(e)(2) only precluded petitioners from asserting invalidity in district court based on a “ground” that could have been asserted in the IPR. The Federal Circuit concluded that Congress did not preclude a petitioner from using the same prior art raised in an IPR. Indeed, the Federal Circuit stated: “IPR estoppel does not preclude a petitioner from relying on the same patents and printed publications as evidence in asserting a ground that could not be raised during the IPR, such as that the claimed invention was known or used by others, on sale, or in public use.” (emphasis added)
Thus, the Federal Circuit’s opinion expressly limits IPR estoppel to grounds, not prior art, that could have been raised in an IPR. The court made clear that IPR estoppel does not extend to:
System prior art,
Physical devices,
Patents and printed publications as evidence in asserting grounds not eligible for IPR trials, or
Any other prior art outside the statutory scope of the IPR.
Practical Implications for Patent Litigation
Ingenico reaffirms that device and system prior art are available as a basis for challenges in the district court. Ingenico also confirms that patents and printed publications are fair game in court, at least as evidence supporting other grounds that could not be raised during the IPR. And nothing in this decision upsets the other statutory requirements that must be met for IPR estoppel to apply, including that the IPR must have resulted in a final written decision.
Ingenico is consistent with the Federal Circuit’s treatment of applicant admitted prior art (AAPA), which the Federal Circuit previously noted may be used to support an IPR petition provided it is not the basis of a ground in the petition.
District courts and litigants are now on firmer ground when assessing the limits of IPR estoppel. As before, practitioners should determine which arguments are IPR-eligible and which must be reserved for litigation, ensuring they don’t unintentionally overcommit—or underplay—their hand in either forum. But now Practitioners will have more confidence when relying on patents and printed publications to support their invalidity positions around on sale, public use and other grounds not permissibly raised in an IPR proceeding.
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Spring 2025 Kattison Avenue
Against the backdrop of many significant developments in the advertising law space, we are thrilled to release the Spring 2025 issue of Kattison Avenue. In this edition, you will find updates on the Trump administration’s imposition of tariffs on imports and their impact on retailers and consumers, UK efforts to improve online safety for children, recent decisions by the National Advertising Division (NAD) affecting advertisers and influencers, and considerations for businesses using Generative AI (GenAI) in their day-to-day operations.
First, Intellectual Property Partner and Advertising, Marketing and Promotions Co-Chair Christopher Cole writes about businesses that rely on tariffed imports that are considering itemizing “tariff-related” costs separately to explain the price hikes to consumers. Chris notes that, while attributing part of the cost to tariffs is not categorically prohibited, calculating and disclosing the precise amount of tariff surcharges will be subject to truth-in-advertising principles such as the California Honest Pricing Law. Then, London Deputy Managing Partner Terry Green discusses the United Kingdom’s robust efforts to improve online safety for kids and recent guidance that all platforms under the Office of Communications’ (Ofcom) Online Safety Act (OSA) must comply with to mitigate children’s exposure to harmful content.
Up next, Intellectual Property Associate Catherine O’Brien summarizes recent NAD decisions targeting third-party marketing by celebrities and influencers. Katie describes the NAD’s recent evaluations, as part of its routine monitoring program, of social media posts by third parties that found unsubstantiated claims or failure to meet disclosure standards, emphasizing that brands must exercise meaningful control over advertising claims that are made on their behalf. Finally, an article by Intellectual Property Partner Michael Justus explains that GenAI vendors, models and use cases are not all created equal. He advises companies to complete due diligence before selecting model providers, carefully scrutinize use cases, and implement policies and training that reflect enterprise risk tolerance.
In This Issue
Tips For Companies Crafting Tariff Surcharge Disclosures
Byte-Sized Protection: Keeping Kids Safe Online, One Risk Assessment at a Time
Influencers Say the Darndest Things: National Advertising Division Targets Third-Party Marketing in Recent Decisions
Choose Your GenAI Model Providers, Models and Use Cases Wisely
News to Know
Read the Full Newsletter Here
China’s Supreme People’s Court and the Supreme People’s Procuratorate Release Typical Cases of Criminal IP Enforcement for 2024
On April 24, 2025, China’s Supreme People’s Court (SPC) and the Supreme People’s Procuratorate (SPP) released the Typical Cases of Criminal IP Enforcement for 2024 (知识产权刑事保护典型案例). This batch was released to show how the newly-issued Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights applies in criminal cases. This batch involves several foreign IP owners including Lego and Universal Studios. In addition, two criminal trade secret theft cases made the list.
As jointly explained by the SPP and SPC:
Case 1
Case of Shanghai XX Education Technology Co., Ltd. and Yao XX counterfeiting registered trademarks
【Basic Facts】
Lego and “LEGO Education” are registered trademark of Lego Co., Ltd., and the approved services are education, training, entertainment competitions, etc. The defendant, Shanghai XX Education Technology Co., Ltd., rented a store to operate the “LC Lego Robot Center”, and the defendant Yao was the actual operator of the company. From March to June 2021, Yao displayed the authorization letters, Lego Education coach qualification certificates and other documents purchased from others that counterfeited the registered trademarks of ” Lego” ” and “LEGO Education”, and used ” Lego” and other logos for store signs, decorations, posters, employee clothing, shopping mall signs, etc., to provide education and training services. Shanghai XX Education Technology Co., Ltd. collected more than 510,000 RMB in training course fees, most of which was used by the company.
[Judgment Result]
The Third Branch of the Shanghai People’s Procuratorate accused the defendant Shanghai XX Education Technology Co., Ltd. and the defendant Yao of the crime of counterfeiting registered trademarks and filed a public prosecution with the Shanghai Third Intermediate People’s Court. After trial, the Shanghai Third Intermediate People’s Court held that Shanghai XX Education Technology Co., Ltd. used the same trademark as the registered trademark on the same service without the permission of the registered trademark owner, and Yao was the directly responsible supervisor of the unit, both of which constituted the crime of counterfeiting registered trademarks, and therefore sentenced them to punishment.
【Typical significance】
The “Amendment to the Criminal Law of the People’s Republic of China (XI)” amended Article 213 of the Criminal Law, bringing the counterfeiting of registered service trademarks into the scope of regulation of the Criminal Law, and strengthening the criminal protection of registered trademarks. In this case, it was determined that the education and training services provided by the defendant unit and the services approved for use by the service registered trademark of the right holder were the same type of services, and the training fees collected by the defendant unit were used as the basis for conviction, which was in line with the provisions of the Criminal Law. The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights” further clarified the identification standards for “the same type of service” based on the actual situation such as the characteristics of the service industry, stipulated that the amount of illegal income was the standard for conviction of the crime of counterfeiting registered service trademarks, and further clarified that the service fees collected by the perpetrators were illegal income.
Case 2
Long et al. counterfeit registered trademark case
【Basic Facts】
The products approved for use by Rong’s registered trademark are “medical isolation gowns, surgical gowns”, etc. From December 2021 to January 2022, the defendants Long, Gao, Chen, Yuan, and Zeng, after planning, purchased protective clothing and packaging materials without the permission of Rong, the registered trademark owner, and packaged disposable medical protective clothing on their own, and sold them with Rong’s registered trademark attached. Among them, Long was responsible for contacting to purchase packaging materials, Gao, Chen, and Yuan were responsible for purchasing protective clothing, Yuan also provided an account for collecting payments, Zeng contacted private factories for OEM production of counterfeit medical protective clothing, and hired workers to package protective clothing. Long and others sold more than 40,000 sets of disposable medical protective clothing, with an illegal business amount of more than 580,000 RMB.
[Judgment Result]
The People’s Procuratorate of Nanchang High-tech Industrial Development Zone, Jiangxi Province, accused the defendant Long and others of the crime of counterfeiting registered trademarks and filed a public prosecution with the People’s Court of Nanchang High-tech Industrial Development Zone. After trial, the People’s Court of Nanchang High-tech Industrial Development Zone held that the goods “disposable medical protective clothing” and “medical isolation clothing and surgical clothing” approved for the registered trademarks are basically the same in terms of product functions, uses, main raw materials, consumer objects, sales channels, etc., and the relevant public believes that they are the same kind of goods, which belongs to the “same kind of goods” stipulated in Article 213 of the Criminal Law. Long and others used the same trademark as the registered trademark on the same kind of goods without the permission of the registered trademark owner, which constituted a joint crime, and the amount of illegal business was more than 580,000 RMB, which constituted the crime of counterfeiting registered trademarks, and were sentenced to punishment.
【Typical significance】
The identification of “the same kind of goods” is a difficult issue in handling criminal cases involving counterfeit registered trademarks. In practice, when the name of the goods produced and sold by the perpetrator is different from the name of the goods approved for use by the registered trademark of the right holder, if the two are the same or basically the same in terms of function, purpose, main raw materials, consumer objects, sales channels, etc., and the relevant public generally believes that they are the same kind of goods, they should be identified as “the same kind of goods”. In this case, the infringing goods and the goods approved for use by the registered trademark of the right holder are “the same kind of goods” in accordance with the law, and the defendants were accurately sentenced according to the law based on their roles in the joint crime, effectively cracking down on the illegal and criminal acts of manufacturing and selling counterfeit medical products. The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights” further clarifies the identification standards of “the same kind of goods” based on actual conditions. In addition, in order to accurately crack down on crimes of infringement of intellectual property rights in accordance with the law, the judicial interpretation clarifies the specific circumstances in which joint crimes are punished.
Case 3
Case of Lu XX et al. counterfeiting registered trademarks
【Basic Facts】
From November 2019 to August 2022, the defendant Lu XX and others, without the permission of the registered trademark right holder, commissioned others to produce trademarks such as “HARRY POTTER” and “UNIVERSAL STUDIOS”, and produced magic robes, scarves, ties and other Universal Studios Harry Potter products with the above trademarks through self-processing, sewing and labeling, and then sold them, with an illegal business amount of more than 11.25 million RMB. The public security organs seized 25,730 counterfeit registered trademark products and 72,550 hang tags, collar labels, washing labels, etc. in the premises operated by Lu XX.
[Judgment Result]
The People’s Procuratorate of Tongzhou District, Beijing, accused the defendant Lu XX and others of the crime of counterfeiting registered trademarks and filed a public prosecution with the People’s Court of Tongzhou District, Beijing. The People’s Court of Tongzhou District, Beijing held that the registered trademark owner registered trademarks such as “HARRY POTTER” and “UNIVERSAL STUDIOS”, and the alleged infringing mark added elements that lacked distinctive features after “UNIVERSAL STUDIOS”, which did not affect the distinctive features of the registered trademark and was an “identical trademark”. Lu XX and others used trademarks identical to their registered trademarks on the same kind of goods without the permission of the registered trademark owner, which constituted the crime of counterfeiting registered trademarks and were sentenced to punishment.
【Typical significance】
In order to further combat the crime of counterfeiting registered trademarks and unify and clarify the identification standards of “identical trademarks”, the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Intellectual Property Infringement” clarified the identification standards of identical trademarks. In this case, the addition of elements lacking distinctive features to the alleged infringing mark does not affect the distinctive features of the registered trademark and should be identified as a trademark identical to the registered trademark, demonstrating the concept of strict intellectual property protection.
Case 4
Zhao XX and Zhang XX’s patent counterfeiting case
【Basic Facts】
The defendants Zhao XX and Zhang XX run a biotechnology company. Since 2021, the two have printed the invention patent number of a Chinese medicine research company’s “A method for preparing a purslane extract” on the cosmetics packaging produced by their company without the permission of the Chinese medicine research company, and sold cosmetics that counterfeit the above patent. Zhao and Zhang sold counterfeit cosmetics with the above patent for more than 990,000 RMB, and the value of the counterfeit cosmetics with the above patent that have not yet been sold is more than 570,000 RMB, and the total amount of illegal business is more than 1.56 million RMB.
[Judgment Result]
The People’s Procuratorate of Baiyun District, Guangzhou City, Guangdong Province, accused the defendants Zhao and Zhang of patent counterfeiting and filed a public prosecution with the Baiyun District People’s Court of Guangzhou City. After trial, the Baiyun District People’s Court of Guangzhou City held that Zhao and Zhang had been operating a cosmetics production company for many years. They knew that the use of patent marks or patent numbers should be authorized by the patent owner, but they still marked other people’s patent numbers on the product packaging without the permission of the patent owner, misleading the public into believing that the cosmetics were patented products. This was an act of “counterfeiting other people’s patents” and the circumstances were serious, constituting the crime of patent counterfeiting, and therefore sentenced them to punishment.
【Typical significance】
The crime of patent counterfeiting regulates the act of counterfeiting other people’s patents without the permission of the patent owner. Falsely marking other people’s patent numbers to mislead the public into believing that the products sold are legally produced and manufactured by the patent subject damages the legitimate rights and interests of the patent owner and disrupts the market economic order. If the circumstances are serious, criminal liability shall be pursued in accordance with the law. The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Intellectual Property Infringement” clarifies the specific circumstances of counterfeiting other people’s patents and the standard for “serious circumstances” to strengthen criminal protection of patents.
Case 5
Copyright infringement case of Zhang and Sun
【Basic Facts】
Between the end of 2017 and January 2023, the defendants Zhang and Sun, etc., developed and operated a number of film and television aggregation apps for the purpose of profit. Zhang, Sun, etc. downloaded popular audiovisual works without the permission of the copyright owner and uploaded them to a rented cloud storage server, and purchased technical analysis services from others, and provided audiovisual works playback and download services to the public through the multiple apps they operated. Through the technical analysis service, the public can obtain the audiovisual works from the above-mentioned multiple apps involved in the case without jumping to the network platform of the relevant copyright owner. Zhang, Sun, etc. made profits by publishing paid advertisements and collecting advertising promotion fees in the multiple apps involved in the case. Among them, Zhang, Sun, etc. disseminated more than 72,000 audiovisual works through “hotlinking”.
[Judgment Result]
The People’s Procuratorate of Xinwu District, Wuxi City, Jiangsu Province, accused the defendants Zhang and Sun of copyright infringement and filed a public prosecution with the People’s Court of Xinwu District, Wuxi City. The People’s Court of Xinwu District, Wuxi City held that Zhang and Sun objectively made the relevant audiovisual works directly appear on the multiple apps involved in the case by “stealing links”, which was an act of “providing” works. The public was able to obtain the above-mentioned audiovisual works from the multiple apps involved in the case at a time and place selected by individuals and directly play and download them, infringing the copyright owner’s right to disseminate through information networks, which was an act of “disseminating to the public through information networks” as stipulated in Article 217 of the Criminal Law. Zhang and Sun disseminated audiovisual works to the public through information networks for the purpose of profit without the permission of the copyright owner, which constituted the crime of copyright infringement and were sentenced to punishment.
【Typical significance】
The “Amendment to the Criminal Law of the People’s Republic of China (XI)” clearly stipulates that “dissemination to the public through information networks” is an implementation behavior, which is distinguished from “copying and distributing”. Without the permission of the copyright owner, “dissemination to the public through information networks” infringes the copyright owner’s information network dissemination right. According to the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights”, if a person provides works, audio and video products, and performances to the public by wire or wireless means without permission, so that the public can obtain them at the time and place of their choice, it shall be deemed as “dissemination to the public through information networks” as stipulated in Article 217 of the Criminal Law. With the emergence of new technologies in the field of information dissemination, more and more technologies similar to “hotlinking” can avoid the link of uploading works, allowing users to obtain corresponding works, which is very harmful to society. Based on the specific methods of “hotlinking” and its social harm, this case is determined to be an information network dissemination behavior, which infringes the copyright owner’s information network dissemination right, which is conducive to accurately defining the nature of deep linking behaviors such as “hotlinking.”
Case 6
Liu XX’s and Liu YY’s copyright infringement case
【Basic Facts】
From March 2019 to July 2022, the defendant Liu XX, for the purpose of profit, without the permission of the copyright owner, made dongles to circumvent the technical protection measures of copyright, copied related software without authorization, and sold dongles and pirated software. Liu XX also instructed the defendant Liu YY to sell dongles and pirated software. During this period, Liu XX was responsible for making the dongles, copying pirated software, putting goods on shelves, sending express delivery, etc., and Liu YY was responsible for account customer service, collection, etc. The illegal business amounts involved by Liu XX and Liu YY were more than 1.06 million RMB and more than 140,000 RMB, respectively. The dongles sold by Liu XX and Liu YY can circumvent the technical protection measures taken by the copyright owner for their software copyrights.
[Judgment Result]
The Third Branch of the Shanghai People’s Procuratorate accused the defendants Liu XX and Liu YY of copyright infringement and filed a public prosecution with the Third Intermediate People’s Court of Shanghai. The Third Intermediate People’s Court of Shanghai held that Liu XX and Liu YY, for the purpose of profit, deliberately circumvented the technical measures taken by the copyright owner to protect the copyright for their works without the permission of the copyright owner. In particular, Liu Sheng produced and sold dongles and pirated software, etc., and was at the source of the industrial chain in the relevant series of cases. The act of providing devices to circumvent technical measures has great social harm. Liu XX’s circumstances are particularly serious, and Liu YY’s circumstances are serious. Both of them have committed the crime of copyright infringement and were sentenced to punishment.
【Typical significance】
The “Amendment to the Criminal Law of the People’s Republic of China (XI)” includes the act of circumventing technological measures in the scope of regulation of the crime of copyright infringement, further strengthening the criminal protection of copyright. The social harm caused by providing devices for circumventing technological measures is great, and it is a criminal act stipulated in the Criminal Law. In this case, Liu XX and Liu YY were held criminally responsible for the crime of copyright infringement in accordance with the law, fully protecting the legitimate rights of copyright owners, and demonstrating the strength and determination to strengthen criminal judicial protection of intellectual property rights and serve the innovative development of the digital economy. The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement” clearly stipulates that the act of intentionally providing devices, components, and technical services for circumventing technological measures constitutes the crime of copyright infringement.
Case 7
Case of Lin XX et al. infringing copyright and Liu XX et al. selling infringing copies
【Basic Facts】
From 2019 to February 2023, the defendant Lin and others copied and distributed “scripted murder game” works by scanning, typesetting, printing and other means without the permission of the copyright owner, and the illegal business amount was more than 5.4 million RMB. The defendants Liu, Yang XX, and Yang YY knew that the “scripted murder games” sold by Lin and others were infringing copies without the permission of the copyright owner, but they still purchased them and sold them to the outside. Among them, Liu’s sales amount was more than 7.38 million RMB, and Yang XX’s and Yang YY’s sales amount was more than 3.12 million RMB.
[Judgment Result]
The People’s Procuratorate of Nanhu District, Jiaxing City, Zhejiang Province, accused the defendant Lin and others of copyright infringement, and the defendants Liu , Yang XX, and Yang YY of selling infringing copies, and filed public prosecutions with the Nanhu District People’s Court of Jiaxing City. The Nanhu District People’s Court of Jiaxing City held that Lin and others, for the purpose of profit, copied and distributed literary works and works of art without the permission of the copyright owner, which constituted copyright infringement; Liu, Yang XX, and Yang YY sold infringing copies, which constituted the crime of selling infringing copies, and sentenced them to punishment.
【Typical significance】
The “Amendment to the Criminal Law of the People’s Republic of China (XI)” has amended the provisions for the crime of selling infringing copies, and changed “huge illegal proceeds” to “huge illegal proceeds or other serious circumstances”, expanding the circumstances for conviction. In order to further crack down on illegal and criminal acts of copyright infringement and improve the standards for conviction, the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Intellectual Property Infringement” stipulates that “sales amount”, “value of goods” and “number of copies” are “other serious circumstances.” In order to further distinguish between the crime of copyright infringement and the crime of selling infringing copies, the judicial interpretation clarifies that the “copying and distribution” in the crime of copyright infringement does not include the simple “distribution” behavior. Distributing infringing copies made by others by selling them should be deemed as the crime of selling infringing copies. This series of cases was convicted and sentenced for the crime of copyright infringement and the crime of selling infringing copies according to the specific acts committed by each defendant, which is in line with the spirit of the judicial interpretation.
Case 8
Case of Wang XX infringing on trade secrets
【Basic Facts】
From April 2020 to April 2021, the defendant Wang worked in a certain automobile company in Wuhu. On March 23, 2021, Wang was preparing to switch to a new energy automobile company in Zhejiang to engage in electrical appliance research and development. In order to bring the switch control technology of a certain automobile company in Wuhu to a certain new energy automobile company in Zhejiang, on the evening of April 4, 2021, Wang dismantled the computer hard disk of the leaders of Group 1 and Group 2 of the Intelligent Vehicle Technology Center of a certain automobile company in Wuhu, which he had no authority to view, and took it away, and uploaded the technical information of the “center console switch assembly” and “one-button start ” of a certain model of automobile switch system in the computer hard disk to his own Baidu cloud account. After evaluation, the reasonable license fee for the above two technical information is 1.14 million RMB.
[Judgment Result]
The People’s Procuratorate of Wuhu Economic and Technological Development Zone, Anhui Province, accused the defendant Wang of violating trade secrets and filed a public prosecution with the People’s Court of Wuhu Economic and Technological Development Zone. The People’s Court of Wuhu Economic and Technological Development Zone held that the technical information contained in the technical drawings of the “center console switch assembly” and “one-button start ” in the switch system of a certain model of a certain automobile company in Wuhu was a trade secret. Wang obtained trade secrets by dismantling and taking away the computer hard drive, which was an act of obtaining trade secrets by improper means of theft. The amount of loss can be determined according to the reasonable license fee of the trade secret. The circumstances were serious and constituted the crime of violating trade secrets, so he was sentenced to punishment.
【Typical significance】
The “Amendment to the Criminal Law of the People’s Republic of China (XI)” changed the standard for conviction of the crime of infringing on trade secrets from “causing major losses to the rights holder of the trade secrets” to “serious circumstances”, increasing the criminal protection of trade secrets. The person who obtains trade secrets by improper means does not have legal knowledge or possession of the trade secrets before, and his act of obtaining trade secrets by improper means is itself illegal and should be severely punished. If a trade secret is obtained by improper means, the amount of loss of the rights holder can be determined according to the reasonable license fee of the trade secret, and it is not required to use the trade secret for production and operation to cause profit loss. In this case, according to the provisions of the Criminal Law, Wang’s behavior was determined to be “serious circumstances” and he was sentenced in accordance with the law, demonstrating the strict protection of innovative achievements. The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights” further clarified the standard for determining “serious circumstances..
Case 9
Case of Luo XX and Sun XX spying, buying and illegally providing commercial secrets an overseas entity
【Basic Facts】
In August 2022, the defendant Sun accepted the commission of a foreign person and provided him with commercial information on new energy batteries of a certain technology company for a fee. After Sun discussed with the defendant Luo, Luo obtained the company’s new energy battery research and development data, future industrial layout and other commercial information from relevant personnel of a certain technology company through illegal means such as espionage and bribery, and Sun provided it to the foreign person. Sun received a remuneration of more than 110,000 RMB, of which 70,000 RMB was paid to Luo . In April 2023, Luo directly accepted the commission of the foreign person and again provided commercial information of a certain technology company and received a remuneration of 100,000 RMB.
[Judgment Result]
The People’s Procuratorate of Yinzhou District, Ningbo City, Zhejiang Province, accused the defendants Luo and Sun of spying, buying, and illegally providing commercial secrets for foreign countries, and filed a public prosecution with the People’s Court of Yinzhou District, Ningbo City. After trial, the People’s Court of Yinzhou District, Ningbo City held that the new energy battery research and development data and future industrial layout information illegally provided by Sun and Luo to foreign personnel were commercial secrets, and Luo and Sun constituted the crime of spying, buying, and illegally providing commercial secrets for foreign countries, and sentenced them to punishment.
【Typical significance】
In order to maintain a fair and competitive market economic order, the “Criminal Law Amendment (XI) of the People’s Republic of China” adds the crime of stealing, spying, buying, and illegally providing trade secrets from abroad, improves the criminal law network, and strengthens the criminal protection of trade secrets. This crime is a behavioral crime, and criminal liability can be pursued without requiring the circumstances to be serious. The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Intellectual Property Rights” stipulates the specific circumstances of the “serious circumstances” for the sentencing standard of this crime, which is consistent with the circumstances of conviction for the crime of infringing trade secrets, etc., to ensure the effective connection between the conviction and sentencing of the two crimes.