In the recently issued Annual Report of the Intellectual Property Court of the Supreme Court (2020), computer software appeal cases heard by the Intellectual Property Court of the Supreme Court (the IP Court) in 2020 have the following characteristics.
First, the number of cases has increased significantly and the types are relatively concentrated. The number of such cases increased from 142 in 2019 to 360 in 2020, an increase of 154%. The main types of cases are computer software development contract disputes and infringement disputes of computer software copyright, accounting for 69% and 21% respectively.
Second, there are more cases where appeals are made only for the amount of first instance judgment, and the rate of mediation and withdrawal is relatively high. 298 cases involving computer software entities were concluded, and 118 cases were concluded by mediation or withdrawal, accounting for 40%.
Third, the focus of the disputes is relatively concentrated, and the fact finding is more complex. The disputes of computer software development contract mainly focus on whether the parties have fulfilled the obligations of software development and the liability for breach of contract; the disputes of software infringement mainly focus on, technical comparison between the alleged infringing software and the right software.
The IP Court released adjudication rules based on some typical cases concluded in 2020. The following are three of them relating to computer software.
1. Judgment of infringement of computer software copyright
[Case Number](2020)最高法知民终209号 [Appellant]Beijing JUNYI Electrophoresis Co., Ltd.
[Appellee]Beijing Dongfang Ruili Technology Co., Ltd.
[Case Type]Infringement of computer software copyright [Adjudication rules]The judgment of computer software copyright infringement should still follow the standard of “contact plus substantial similarity;” source code comparison is not a prerequisite and necessary link for the judgment of computer software copyright infringement.
2. Determination of the effectiveness of technical measures
[Case Number](2020)最高法知民终1206号 [Appellant]Wei Qinghua [Appellee]Der Lih Fuh Co., Ltd [Case Type]Infringement of computer software copyright [Adjudication rules] “Technical measures for the protection of copyright” as prescribed in the Copyright Law refers to technical measures which are able to effectively prevent infringement under normal use environment and do not require the technical measures to be completely unbreakable or unavoidable.
3. Understanding of staged payment in computer software development contracts
[Case Number](2020)最高法知民终1545号 [Appellant]Wuhan Zhongxinlan Software Co., Ltd.; Li Qun [Appellee]Wuhan Jingke Lvyuan Technology Co., Ltd [Case Type]Dispute over a computer software development contract [Adjudication rules]Computer software development contracts have a long performance period with software function requirements dynamically changing with the development process, etc. Correspondingly, the computer software development field has the business habit of phased, proportional payment. Since the various development stages are often interdependent and closely linked, whether the payments made by the client at each stage shall only be understood as the work results of the corresponding development stage shall be specifically determined according to the contract and the performance of the contract.