WU ZHIBIN VS SHANGHAI PUYUAN STUFFED TOYS FACTORY ET AL
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Civil Case Judgment
The Intermediate People' S Court of Shanghai
1993-Hu-Zhong-Jing-Chu-Zi-266
Plaintiff:
Wu Zibin, male, born on November 29, 1939, of Han nation-ality, a native of Taiwan Province, with present home address at 12615 Park St, Cerritos, CA 90701, USA
Authorized Attorneys: Xu Weiqi, attorney-at-law of the No.2 Law Firm of Shanghai
Wang Qiyan, attorney-at-law of the No.2 Law Firm of Shanghai
Defendants:
Shanghai Puyuan Stuffed Toys Factory (original name Shang-hai Wanglong Stuffed Toys Factory)
Address: 164 Xinma Road, Zhoupu Town, Nanhui County, Shanghai
Legal Representative: Tang Shilin, factory manager Authorized Attorney: Zhou Guoqing, its employee
The No.4 Umbrella Factory of Shanghai, Address: 369 Longhuadong Road, Shanghai
Legal Representative: Huang Yong, factory manager
Authorized Attorney: Shi Jichao, attorney-at-law of Nanpu Law Firm, Shanghai Gangxing Industrial Corporation, Fuzhou, Fujian , Address: Aixin Building, 6 Pingshan Residential Area, Fufei Road, Fuzhou, Fujian
Legal Representative: Wang Mingxing, the general manager
Authorized Attorneys: Wang Guocheng, attorney-at-law of Shanghai Commercial Afairs LawFirm
Wang Yunying, attorney-at-law of Fuzhou Foreign Economic Afairs Law Firm,
Zhoupu Industrial Corporation, Shanghai Address: Zhoupu Town, Nanhui County, Shanghai
Legal Representative: Deng Longzhang the general manager
Authorized Attorney:
Zhang Shuihua, employee of Ugal Service Center of Zhoupu Town, Nanhui County
Xinxin Umbrella Corporation, Hangzhou, Zhejiang Address: 42 Ganhe, Linping Town, Yuhang County, Hangzhou, Zhejiang
Ruian Umbrella Factory, Address: 55 Gongyuan Road, Ruian, Zhejiang
This Court, after filing the case of patent infringement Wu Zibin (plaintiff) V. Defendants Puyuan Stuffed Toys Factory ("Toy Factory"), The No.4 Umbrella Factory of Shanghai ("Umbrella Factory"), Gangxing Corporation of Fuzhou, Fujian ("Gangx-mg"), Zhoupu Industrial Corporation of Shanghai ("Zhoupu Corpo-ration"), Xinxin Umbrella Corporation of Hangzhou, Zhejiang ("Xinxin"), and Ruian Umbrella Factory of Zhejiang ("Rujan Fac-tory"), has duly formed a collegial panel and held a public trial. Xu Weiqi, attorney of the plaintiff, Zhou Guoqing, attorney of defen-dant the Toy Factory, Zhou Yong, legal representative of defendant the Umbrella Factory, Shi Jichao, attorney of the Umbrella Factory, Wang Guocheng, attorney of defendant Gangxing, and Zhang Shuihua, attorney of defendant Zhoupu Corporation,. appeared at the trial for argument. The hearing of the case has now come to a close.
Plaintiff Wu Zibin alleges that he is the owner of the patented invention the hat-shaped umbrella. With some investigation he has found that defendant the Toy Factory placed some orders with the Umbrella Factory for products that infringe upon his patent right, which products were then accepted and acquired by Gangxing and Zhoupu. Defendant the Umbrella Factory manufactured over 50,000 umbrellas of this kind that infringe upon the rights of the patent owner. Of the 50, 000, 4, 000 were sold by itself, and 360 were delivered to Gangxing. In the course of making these infring-ing products, defendant the Umbrella Factory entrusted defendants Xinxin and Ruian with the processing of the canopies. Thus the de-fendants have committed jointly patent infringement and the plain-tiff asks the court to make a judgment in accordance with relevant provisions of the Copyright Law of the People' s Republic of China and to enjoin the defendants to refrain from further infringements, to make public apologies for their infringing acts, to pay damages of RMB5O, 000 each to the plaintiff as well as to share among them the cost of the case.
Defendant the Toy Factory has failed to submit a pleading-in-answer.
Defendant the Umbrella Factory contends that in May 1992, defendants the Umbrella Factory and the Toy Factory entered into a purchase agreement which was in fact a contract for processing products according to offered samples. Defendant the Umbrella Factory had similar contracts with defendants Xinxin and Ruian; In the course of performing these contracts, the Umbrella Factory found that defendants the Toy Factory, Gangxing and Zhoupu lacked sincerity in performing their contractual obligations. So defendant the Umbrella Factory sold about 3, 000 processed umbrellas itself. Defendant the Umbrella Factory had no knowledge that 'the products it processed were patented until the plaintiff raised the issue. Defendant the Umbrella Factory has expressed its sincere apology to the plaintiff.
Defendant Gangxing has failed to submit its pleading-in-answer.
Defendant Zhoupu contends that it has no hand in the production, use and sale of the hat-shaped umbrellas Under the contract between defendants the Toy Factory and the Umbrella Factory, the acceptor of the products in question was Gangxing, and Zhoupu, be-mg the superior administrative corporation of defendant the Toy Factory, had no knowledge that the hat-shaped umbrella was the patented invention of the plaintiff.
As a result of our investigation, this Court has found that on February 24, 1988, plaintiff Wo Zibin submitted a patent application and on October 16, 1991 he acquired the patent (Patent No.88101058.8). The description of the patented invention is as follows: It is a hat-shaped umbrella, with the central pole, the canopy, a fixed hive on top of the central pole, a mobile hive on the middle part of the central pole, the long ribs supporting the canopy hinged on the fixed hive, and the short ribs connected with the mobile hive on one end and hinged on the long ribs on the other. The hat-shaped umbrella features a hat-shaped part which is connected with the canopy. The horizontal ribs which support the hat-shaped part, the auxiliary ribs over the central pole at the connection of the mobile hive, and the curved joints that are connected respectively with one end of the long supporting ribs, the auxiliary ribs and the horizontal ribs, enable the hat-shaped part to open and close with the vertical motion of the mobile hive.
On February 28, 1992, defendants Gangxing and Zhoupu signed a purchase agreement, under which defendant Gangxing should provide defendant Zhoupu with samples for the latter to produce 40,000 dozens of hat-shaped umbrellas as toys for children. The total value of the contract was RMB5, 120,000. On May 24 of the same year, defendants the Umbrella Factory and the Toy Factory entered into a purchase contract, under which defendant the Umbrella Factory should manufacture 25,000 dozens (300,000) of hat-shaped umbrellas against samples offered by defendant the Toy Factory. On July 11 of the same year, defendants the Umbrella. Factory, Gangxing1 Zhoupu and the Toy Factory held negotiations on the performance of the two contracts.
Besides, the Court has also found that in May 1992, defendant the Umbrella Factory assigned pan of the above-mentioned processing jobs to defendants Xinxin and Ruian. When the Umbrella Factory had manufactured the hat-shaped umbrellas, defendants the Toy Factory and Gangxing questioned their quality, so defendant .Gangxing took only 360 of these hat-shaped umbrellas and defendant the Toy Factory did not take any. Defendant the Umbrella Factory sold 4, 000 of these by itself, and has still 46,780 of these in its inventory.
In the course of litigation at the trial level, plaintiff withdrew his complaint against defendants Xinxin and Ruian; and reached a settlement agreement with defendant the Umbrella Factory, under which I) defendant the Umbrella Factory will pay to plaintiff damages of RMB 10,000 within 10 days after the said document becomes effective, and plaintiff will waive his other claims against defendant the Umbrella Factory; 2) Defendant the Umbrella Factory will make an public apology to plaintiff; and 3) The two parties agree that they have no other disputes.
This court holds that plaintiff holds a valid and effective patent, and is entitled to protection by the law. Defendants the Toy Factory, the Umbrella Factory, Gangxing and Zhoupu entered into purchase contracts, and processed and manufactured plaintiff's patented products. This in itself constituted an.. infringement upon plaintiff's patent rights. Thereafter, for one reason or another, the contracts by the four defendants set forth above were not fully executed. But failure to fully execute the contracts should not release the above defendants of their liabilities for infringements. The costs and expenses for investigation and the attorneys fee, which the plaintiff paid in order to protect his patent rights, should he shared by the defendants, as circumstances warrant. In the course of hearing the case, plaintiff withdrew his complaints against defendants Xinxin Umbrella Corporation of Hangzhou, Zhejiang, and Ruian Umbrella Factory of Zhejiang, and reached a settlement agreement with Shanghai No.4 Umbrella Factory. These acts are all in conformity with the law. In accordance with Article 118 and Clauses 1,7, 9, 10 of Paragraph 1 of Article 134 of General Principles of Civil Law of the People' s Republic of China, Article 131 of Civil Procedure Law of the People ' s Republic of China, and Articles 11 and 60 of the Patent Law of the People s Republic of China1 we hereby make the following decisions:
1. We grant permission for plaintiff We Zibin to withdraw his complaints against defendants Xinxin Umbrella Corporation of Hangzhou, Zhejiang, and Ruian Umbrella Factory of Zhejiang.
2. We affirm the settlement between the plaintiff and defendant the No.4 Umbrella Factory of Shanghai, which is in conformity with the law.
3. Defendant Gangxing Corporation of Fuzhou, Fujian, shall pay to plaintiff RMB24, 000 as damages, Defendant Zhoupu Indus-trial Corporation of Shanghai shall pay to plaintiff RMB23, 000 as damages, and defendant Puyuan Stuffed Toys Factory shall pay to plaintiff RMB23, 000 as damages.
4. Defendants Gangxing Corporation of Fuzhou, Fujian, Zhoupu Industrial Corporation of Shanghai, and Puyuan Stuffed Toys Factory of Shanghai shall make a public apology in a national newspaper. The content of such apology shall be approved by this Court and the cost of publishing such apology, in the amount of RMB1O, 000, shall be shared by the three defendants, with Gangxing Corporation of Fuzhou, Fuj ian, paying 3,400, Zhoupu Industrial Corporation of Shanghai paying 3,300, and Puyuan Stuffed Toys Factory of Shanghai paying 3,300.
5. The 46, 780 hat-shaped umbrellas stored in the No.4 Umbrella Factory of Shanghai shall all be destroyed.
The cost of this case is RMB7, 010, of which defendant Gangxing Corporation of Fuzhou, Fujian, shall pay 2,400, defen-dant Zhoupu Industrial Corporation shall pay 2,3104 and defendant Puyuan Stuffed Toys Factory of Shanghai shall pay 2,300.
If a party refuses to accept as final this judgment, it may submit to this Court an appeal petition within 15 days after service of this judgment, together with a sufficient number of duplicated copies for each party in this case to have one, and the appeal shall be filed with the Higher People's Court of Shanghai.
Presiding Judge: Sun Aimin
Acting Judge: Bei Yongqing
Acting Judge: Chen Mo
Date: Feb.27, 1995
Court Clerk: Jia Qinou
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Civil Case Judgment
The Higher People' S Court of Shanghai
1995-Hu-Gas>Jing-Zhong-( Zhi)-Zi-100
Defendant-appellants:
Zhoupu Industrial Corporation, Shanghai
Address: Zhoupu Town, Nanhui County, Shanghai
Legal Representative: Wang Sheli, manager
Authorized Attorney: Zhang Shuihua, attorney-at-law of Dong-Pu Law Firm of Shanghai
Gangxing Industrial Corporation, Fuzhou, Fuj ian
Address: Aixin Building, 6 Pingshan Residential Area, FufeiRoad, Fuzhou, Fujian
Legal Representative: Wang Mingxing, the general manager
Authorized Attorney: Dong Yihua, attorney-at-law of Huicheng Law Firm of Fujian
Plaintiff-appellee:
Wu Zibin, male, born on November 29, 1939, of Han nation-ality, a native of Taiwan Province, with present home address at 12615 Park St, Cerritos, CA 90701, USA
Authorized Attorney: Xu Weiqi, attorney-at-law of Zhendan Law Firm of Shanghai
Defendants:
Liquidation Committee of Shanghai Puyuan Stuffed Animals Factory
Committee Chairman: Qian Huizhong, vice-mayor of Zhoupu Town, Nanhui County, Shanghai
The No.4 Umbrella Factory of Shanghai
Address: 369 Longhuadong Road, Shanghai
Xinxin Umbrella Corporation, Hangzhou, Zhejiang
Address: 42 Ganhe, Linping Town, Yuhang County, Hangzhou, Zhejiang
Ruian Umbrella Factory
Address: 55 Gongyuan Road, Rujan, Zhejiang
Appellants Zhoupu Industrial Corporation of Shanghai (Zhoupu) and Gangxing Industrial Corporation of Fuzhou, Fujian (Gangxing), refusing to accept as final the judgment on a patent infringement dispute rendered by the Intermediate People's Court of Shanghai, filed as 1993-Ru-Zhong-Jing-Chu-Zi-266, has made an appeal to this Court. In accordance with relevant laws; this Court has duly formed a collegial panel and, on November 10, 1995, held a public hearing of the case. Attorneys for the appellants Zhoupu Corporation and Gangxing Corporation, as well as the attorney for plaintiff Wu Zibin, appeared at the court for argument. The hearing of the case has now come to a close.
After investigation, the trial court found that on February 24, 1988, plaintiff Wu Zibin submitted a patent application and on October 16, 1991 he acquired the patent (Patent No. 8&101058. 8). On February 28, 1992, defendants Gangxing and Zhoupu signed a purchase agreement, under which defendant Gangxing should pro-vide defendant Zhoupu with samples for the latter to produce 40, 000 dozens of hat-shaped umbrellas as toys for children. The total value of the hat-shaped umbrellas was RMB 5, 120,000. On May 24 of the same year, defendants The No .4 Umbrella Factory of Shanghai ( "Umbrella Factory" ) and Puyuan Stuffed Toys Factory of Shanghai ("Toy Factory") entered into a purchase contract, under which defendant the Umbrella Factory should manufacture 25, 000 dozens (300, 000) of hat-shaped umbrellas against samples offered by defendant the Toy Factory. On July 11 of the same year, defendants the Umbrella Factory, Gangxing, Zhoupu and the Toy Facto-ry held negotiations on the performance of the two contracts.
Besides, the trial court also fdund that in May 1992, defen-dant the Umbrella Factory assigned part of the above-mentioned processing jobs to defendants Xinxin Umbrella Corporation of Hangzhou, Zhejiang ("Xinxin") and Rujan Umbrella Factory of Zhejiang ("Rujan") When defendant the Umbrella Factory fin-ished manufacturing the hat-shaped umbrellas, defendants the Toy Factory and Gangxing questioned their quality, so Gangxing took only 3 6 0 of these hat-shaped umbrellas and defendant the Toy Fac-tory did not take any. Defendant the Umbrella Factory sold 4, 000 of these by itself, and has still 46, 780 of these in its inventory.
In the course of litigation at the triaL level, plaintiff withdrew his complaint against defendants Xinxin and Ruian, and reached a settlement with defendant the Umbrella factory, under which 1) defendant the Umbrella Factory will pay to plaintiff damages of RMB10, 000 within 10 days after the said document becomes effective, and plaintiff will waive his other claims against defendant the Umbrella Factory; 2) Defendant the Umbrella Factory will make an public apology to plaintiff.
The trial court held that plaintiff held a valid and effective patent, and was entitled to the protection of law. Defendants the Toy Factory, the Umbrella Factory, Gangxing and Zhoupu entered into. purchase contracts, and processed and manufactured plaintiff' s patented products. This in itself constituted an infringement upon plaintiff's patent rights. Thereafter, for one reason or another, the contracts by the four defendants set forth above were not fully executed. But failure to fully execute the contracts should not release the above defendants of their liabilities for infringements. The costs and expenses for investigation and the attorneys fees, which the plaintiff paid in order to protect his patent rights, should be shared by the defendants, as circumstances warranted. In the course of hearing the case, plaintiff withdrew his complaints against defendants Xinxin and Ruian, and reached a settlement agreement with the Umbrella Factory. These acts were all in conformity with the law. In accordance with Article 118 and Clauses 1, 7, 9 & 10 of Paragraph 1 of Article 134 of General Principles of Civil Law of the People 's Republic of China, Article 131 of the Civil Procedure Law of the People's Republic of China, and Articles 11 and 60 of the Parent Law of the People ' s Republic of China, the trial court made the following decisions: 1) It granted permission for plaintiff We Zibin to withdraw his complaints against defendants Xinxin and Ruian; 2) It affirmed the settlement agreement between the plain-tiff and defendant the Umbrella Factory; 3) Defendant Gangxing should pay to plaintiff RMB24, 000 as damages, Defendant Zhoupu should pay to plaintiff RMB23, 000 as damages, and defendant the Toy Factory should pay to plaintiff RMB23, 000 as damages; 4) Defendants Gangxing, Zhoupu, and the Toy Factory should make a public apology in a national newspaper, and the cost of publishing such apology, in the amount of RMB1O, 000, should be shared by the three defendants, with Gangxing paying 3,400, Zhoupu 3,300, and the Toy Factory 3, 300; 5) The 46,780 hat-shaped umbrellas stored in the Umbrella Factory should all be destroyed. The cost of the case at trial level was RMB7, 010, of which defendant Gangxing should pay 2,400, defendant Zhoupu should pay 2,310, and defen-ant the Toy Factory 2,3OO.
Defendants Zhoupu and Gangxing refuse to accept as final the judgment of the trial court, and have made separate appeals to this Court.
Appellant Zhoupu contends that the samples for the hat-shaped umbrellas were provided by Gangxing, and it had no knowledge that it infringed upon the patent rights of Wu Zibin. At the time when it entered into the contract, it acted on behalf of its subsidiary the Toy Factory, which had not obtained a business license from the administrative department of industry and commerce. On account of this, it petitions to this Court to reverse the judgment of the trial court and to make a new judgment in accordance with the law.
Appellant Gangxing contends that the judgment of the trial court with respect to apology in a national newspaper is obviously in-appropriate, and it petitions this Court to reverse this decision in accordance with the law.
As a result of investigation, this Court has found that on February 24, 1988, plaintiff Wu Zibin submitted a patent applica-tion for his invention to the Patent Bureau of the People's Republic of China and on October 16, 1991 he acquired the patent (Patent No.88101058.8). On February 28, 1992, appellants Gangxing and Zhoupu signed a purchase agreement, under which Gangxing should provide Zhoupu with samples for the latter to produce 40,000 dozens of hat-shaped umbrellas. The total value of the hat-shaped umbrellas was RMB5, 120,000. On May 24 of the same year, defendants The Umbrella Factory and Toy Factory entered into a pur-chase contract, under which the Umbrella Factory should manufacture 25,000 dozens (300,000) of hat-shaped umbrellas against samples offered by the Toy Factory. On July 11 of the same year, appellants Gangxing and Zhoupu held negotiations with defendants the Umbrella Factory and the Toy Factory on the performance of the two contracts.
Besides, this Court has found that in the course of litigation at the trial level, plaintiff Wu Zibin withdrew his complaint against defendants Xinxin and Ruian, and reached a settlement agreement with defendant the Umbrella Factory.
This Court has also found that defendant the Toy Factory was declared bankrupt on August 25, 1995 by the People' 5 Court of Nanhui County, Shanghai. Its claims and debts are being liquidated by the liquidation committee in accordance with the law.
In the course of litigation at the appellate level, appellant Zhoupu and appellee Wu Zibin reached a settlement agreement.
This Court holds that the appellee holds a valid and effective patent, and is entitled to protection under the patent law of this country. Appellants Zhoupu and Gangxing, and defendants the Toy Factory, the Umbrella Factory, Xinxin and Ruian, without proper authorization, organized the production and sale of the patented products of the appellee, and thus infringed upon his patent rights. In the course of litigation at the trial level, the appellee withdrew his complaint defendants .Xinxin and Rujan. This act should be be settlement between: the appellee and defendant the Factory is in conformity with the 'law, and is hereby af-In the course of litigation at the appellate level, the appellee the appellant Zhoupu reached a settlement agreement, which is also in conformity with the law, and we hereby affirm this agreement. Appellant Gangxing's perritions for this Court to reverse the decision of the trial court ordering it to make an apology in a national newspaper lacks legal basis, and we do not support this petition. In view of the fact that defendant the Toy Factory has been declared bankrupt, the trial court's decision ordering it to make an apology in a national newspaper should be vacated. In accordance with Article and 60 of the Patent Law of the People's Republic of China, Paragraph 2 of Article 36 of General Principles of Civil Law of a. People's Republic of China, Clause 1 of Paragraph 1 of Article 153 of the Civil Procedure Law of the People' S Republic of China and Paragraph' 1 of Article 24 of the Bankruptcy Law of the People' S Republic of China (Trial Provisions), we hereby decide as follows:
1. We uphold decisions 1, 2 and 5 of the trial court.
2.We uphold decision 3 of the trial court with respect to the -following: "Defendant Gangxing Corporation of Fuzhou, Fujian, shall pay to plaintiff RMB24, 000 as damages
3. We uphold decision 3 of the trial court with respect to the following: "Defendant Puyuan Stuffed Toys Factory shall pay 'to plaintiff RMB23, 000 as damages". This sum shall be paid by the liquidation committee of Puyuan Stuffed Toys Factory in accordance with the law.
4.We uphold Decision 4 of the trial cotiawith respect to "De-fendant Gangxing Corporation of Fuzhou, Fujian, shaI1 make a public apology in a national newspaper me content of such apology shall be approved by this Court" and "defendant Gangring Corporation of Fuzhou, Fujian (shall Pay) 3,400" for.the cost.of publishing the apology.
5. We vacate Decision 4 with respect to a defendant Puyuan Stuffed Toys Factory of Shanghai shall make a public apology in a national newspaper. The content of such apology shall be approved by this Court" and "defendant Puyuan Stuffed Toys Factory of Shanghai (shall pay )3, 300 for the cost of publishing. the apology".
6. We affirm. the following settlement agreement between Zhoupu and the appellee, which the two parties have reached out of their- own free will:
1) Appellant Zhoupu shall admit that it has infringed upon the patent rights of the appellee Wu Zibin.
2) Appellant Zhoupu shall apologize to appellee in~the frirm of a letter.
3) Appellant Zhoupu shall pay to appellee RMB 4, 185 as damages.
The cost of, the case at the trial level is 7, 010, of which Gangxing shall pay 2,400, Zhoupu 2, 310, the Toy Factory 2, 300 (to be paid by its liquidatjon committee in. accordance with the law). The cost of the case at the appellate level is 7,010, of which Gangxing shall pay 3,505 and Zhoupu 3,505.
This juagment is final.
Presiding Judge: Lu Guoqiang
Judge: Zhou Jue
Acting Judge: Chen zilong
Date: Jan. 11, 1996
Court Clerk: Ma Hong
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Comments
:Patent rights duly acquired from Chinese authorities by Foreign nationals or legal persons are protected under the patent law of this country. Article 59 of the Patent Law of the People' s Republic of China provides that "The scope of protection of the patent right to an invention or a utility model shall be determined by the contents of the patent claim". The hat-shaped umbrellas produced by Gangxing are identical to Wu Zibin' S patented invention in technical properties, and therefore they all fall within the scope of protection claimed by Wu Zibin 5 patent, and in producing such products Gangxing infringed upon Wu Zibin's patent right to his invention of the hat-shaped umbrella. The trial court joined all the enterprises that participated in the production processing and sale of the in-fringing products as cc} defendants, and divided their liability on the basis of each defendant's infringing acts and degree of fault. This is a recommendable method. In the course of litigation, the trial court found that apart from a small number of the infringing
products which had already been sold by Gangxing, the rest was still in the factory warehouse. In accordance with the law, the trial court gave an order enjoining the destruction of all the remaining infringing products, thus preventing these products from getting into the market and protecting the patent right and economic interests of the plaintiff. As to the computation of damages, though only a small number of the infringing products were sold in the market, and the defendants had hardly earned any profit, and therefore the plaintiff had not suffered much damage, plaintiff, being a resident of b Los Angeles, USA, had made several trips beween Los angeles and shanghai, and incurred considerable expenses in hiring attorneys to deal with the infringement and to protect his legitimate rights. On account of this, the trial court included the reasonable expenses incurred by the plaintiff in liti-gating this case as part of the loss of the plaintiff in the computation of damages, and enjoined the defendants to pay for the loss. This is reason-able and fair in view of the given circumstances of the present case.
In the course of litigating the case, the patent holder Wu Zibin withdrew its complaints against Xinxin and Rujan the processors, .and settled with the Umbrella Factory and Zhoupu Company on pay-ment of damages for their infringements. Article i3 of the Civil Procedure Law of the People's Republic of China provides that "The parties are free to deal with their own civil juristic rights and litigation rights the way they prefer within the scope specified by the law". in withdrawing his complaint against Xinxin and Ruian during the trial stage, Wu Zihin' was disposing of his own civil juristic right and litigation rights, and the court granted Wu Zibin's
petition to. withdraw such complaints. Article 9 of the Civil Procedure Law of. the People 'S Republic of China provides that "In trying civ-il cases, the people' 5 courts shall conduct mediation between the paflies on a voluntary and lawful basis". In the course of hearing the case, as a result of negotiations. presided over by the two courts, the patent holder Wu Zibin and the' Umbrella Factory and Zhoupu entered into settlement agreements on the payment of damages and other issues, and the courts, after investigation, found that such settlements were in conformity with the law .and should be affirmed as legally valid and effective in accordance with the law. In the course of hearing the case at the appellate level, the court found that defendant the Toy Factory had been declared bankrupt by the People's Court of Nanhui County, Shanghai. Article 24 of the law of the People ' s Republic of China on Bankruptcy of Enterprises ( Trial Provisions) provides that "Within 15 days after the enterprise is declared bankrupt, the people's court should set up a
liquidation committee to take over the bankrupt enterprise. The liquidation committee shall be responsible for the safe keeping, sorting, evaluation, disposal and distribution of the property of the bankrupt enterprise". In accordance with this provision, though the Toy Factory had been declared bankrupt, it was not discharged from its liability to pay damages for its infringements, and such liability owed to the patent holder Wu Zibin should be assumed by the liquidation cornmittee according to law. Defendant Gangxing was a sponsor of the joint infringement and had the deliberate intention to commit the infringement. In addition to stopping the infringement and paying the damages, it should undertake to eliminate the negative effects of the infringements in corresponding areas and help restore the reputation and influence of the patented products in the market, in accordance with Article 118 of General Principles of Civil law of' the People' s Republic of China. In view of the fact that the infringing acts occurred in a number of provinces and municipalities, the defendants were ordered to make a pub-tic apology in a national newspaper in order to eliminate the negative ef-fects of the infringing acts. So, when defendant Gangxing challenged the trial court, 5 decision ordering it to make a public apology in a national newspaper as "obviously inappropriate" in its petition to the appellate court, the appellate court dismissed the petition as legally groundless.
(by Sun Aimin and Chen Zilong)======================================================
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