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John Jeffrey Sipos and his wife Susanne bought their home in October 2003 on Cobbler Road in North Whitehall Township, property records show..

And they lived there for the next 17 years without brushing up against the law until Pennsylvania State Police came knocking on Oct. 24 with an arrest warrant from a judge in San Diego.

The 75-year-old John Sipos, San Diego police would later announce, was a suspect in the late November 1969 killing of Mary Scott.

Cold case units from the San Diego Police Department and the California countys district attorneys office evaluated the case and were able to use forensic genealogy to identify a possible suspect, according to a brief news release from police on Tuesday. The San Diego Union-Tribune reported Scotts younger sister, having read stories about how DNA and genealogy had led to the arrest of killers, had around the 50th anniversary of her sisters death ... reached out to a law enforcement friend to help get her sisters folder to the top of the cold-case pile.

Parabon NanoLabs and its Chief Genetic Genealogist CeCe Moore werent involved in this investigation, but they are pioneers in the field.

The science -- which Moore says is properly called investigative genetic genealogy -- is about 10 years old and was initially developed to help adoptees learn about their roots.

Its an extremely powerful tool for any type of human identification, Moore, who heads Parabons Genetic Genealogical Services for law enforcement, said in an interview with lehighvalleylive.com from her home in California.

About two and a half years ago, that unit of Parabon entered the world of criminal investigations and has an unparalleled record of over 130 successful identifications in criminal cases, according to background Moore provided.

Her work led to the first conviction, the first conviction through jury verdict, and the first exoneration in criminal cases where the suspect was identified through investigative genetic genealogy.

Raymond "DJ Freez" Rowe pleaded guilty to killing Christy Mirack many years after the 1992 crime in Lancaster.Pennsylvania Department of Corrections

Moore said her first case was the December 1992 murder of school teacher Christy Mirack in Lancaster, Pennsylvania, where the DNA and genealogical work in the spring of 2018 would lead to suspect Raymond DJ Freez Rowe, who wasnt on police radar, according to a published report. There was a significant amount of DNA left at the scene after the sexual assault, beating and strangulation. A DNA profile earlier uploaded by Rowes half-sister to a public database would be the key to solving the crime, a published report said.

An arrest would be made in June 2018 and Rowe would admit his guilt to charges of first-degree murder, rape, forced deviate intercourse and burglary. Rowe, now 52, is serving his life sentence in a Pennsylvania state prison.

It was a seminar through the DNA Doe Project that would led Lehigh County Coroner Eric Minnich to the Mirack case and the ongoing efforts to use DNA and genealogy to solve cold cases. In addition to determining the cause and manner of deaths, the coroners office tells families their loved ones have died. Sometimes thats difficult or nearly impossible due to a lack of information about the person who died. The county has one long unidentified body -- a John Doe case -- and Minnich wonders if this is a route to a resolution.

Lehigh County Coroner Eric Minnich.

Its something weve talked about, he said about using genetic genealogy. Its not something weve done anything about yet. ... As new things become available, its good to apply current standards to old cases. Identification is huge. Currently we use DNA to identify people by comparison from potential family members, but we have to know something. When we dont know anything, theres no simple way to compare DNA.

Investigative genetic genealogy is new to me, he said. Im learning about it too.

But to not consider the evolving science, you might miss an opportunity for identification, Minnich said.

So what changed from the days of the Combined DNA Index System (CODIS) that is the most commonly known DNA repository for crime cases -- but is limited to criminals -- and the development of Parabons work?

The first thing Moore points out is the field is more about genealogy than DNA.

The goal, either way, is to bring answers to people, at first, years back, in family mystery cases and later in such groundbreaking efforts as the Golden State Killer case, which was not a Parabon case but an early and well publicized example of proof of concept. Parabon, based in Reston, Virginia, at that point was in the business of making facial sketches from crime-scene DNA, wired.com reported.

When that case went public, law enforcement really sat up and took notice, Moore said.

CODIS, for example, works with a small portion of a persons genome -- 20 genetic markers, Moore said.

Were looking at hundreds of thousands of genetic markers, she said about the companys work in 2020.

It allows us to detect and predict much more distant relatives, she said. We can predict third, fourth cousins and we can re-engineer the family tree. Were looking at piecing the common ancestors back together that points to one family or one person.

The challenge at first was the DNA pool.

And years ago scientists such as Moore would have to become promoters.

You already know some of the names of commercial applications. 23 and Me. Ancestry. My Heritage. Family Tree DNA.

You send off your DNA to learn more about your roots. Of those four, Family Tree DNA was the only one that made the information public, Moore said. GEDmatch, which caught the publics attention during the Golden State Killer case, is the other major public database. So, working with citizen scientists," the effort began to get people who were already sending DNA to the retail companies to also send the results to GEDmatch, Moore said.

We had to promote this idea of using DNA in order to resolve family mysteries, she said. It was part of my job to get the word out. It took years to build those databases.

Thousand and thousands of volunteer hours later and the pool was much deeper. Family Tree DNA, where people have to actively opt out or results of the free upload become public, has about a million results, Moore said. The investigative industry saw a setback more than a year ago when GEDmatch, which had about 1 million results public, suddenly changed its default from opt in to opt out of DNA results being made public and thus accessible to law enforcement investigations, Moore said. But its back up to about 300,000, she said.

The issues are Fourth Amendment privacy concerns and company transparency worries, news reports say.

The scope of the new science has limits. Most of the people who have the disposable income and interest to pay to send their DNA to the retail firms tend to have ancestry from northwestern Europe, Moore said.

If someone has deep routes in the United States, its easier to identify them, Moore said. With recent immigrants its harder.

And then theres what may be the tougher reality. Moores oldest case dates to 1967. The Scott case is from 1969.

Nobody in a police uniform was worried about DNA preservation in the late 1960s. Or the 1970s. Even into the 1980s. And remember, the jury didnt buy DNA evidence in the mid-1990s when O.J. Simpson was on trial in the killing of his wife.

Thereve been fires, floods, extreme temperatures and contamination over the decades in police evidence storage areas, she said.

Parabon needs about 60% of a persons DNA to work with.

Some of its been thrown out or ordered by judges to be destroyed, she said.

But if the evidence was kept in paper bags or cardboard boxes in a temperature-controlled space -- the key is to avoid extremes -- the DNA can remain viable over many years, she said. It could just be a matter of luck and benign oversight.

Surprisingly, many have worked out to be usable, Moore said.

The truly crushing part for families is now that the science exists, they learn that the crime-scene DNA no longer does, she said.

Her job begins once the DNA has been determined viable, there is a large enough sample and a raw DNA file has been created, she said.

That file is compared against all the people in the public databases, she said.

If as little as 1% of the DNA matches, we can detect these distant relationships, she said. The search is for a common ancestor.

Perhaps it leads to great-grandparents.

You hope you have enough data to narrow it down, Moore said. Optimal cases have matches for all four grandparents. Somehow all these people fit to make this one person related to all these matches. ... The amount of DNA shared helps us predict the relationship.

And thats when the even more detailed and truly difficult part of the effort begins.

Were using the DNA as a guide, she said. From there on its all genealogy.

Anyone who has ever fooled around with ancestry.com knows what comes next.

Birth records. Death records. Any record that might feed a family tree. But in reverse.

Most people learn their lineage from themselves on back. From what you know to what you dont know.

But Moore has to start deep in a familys history and work forward, building a reverse genealogy, she said.

You have to determine the descendants, she said. How did their children and grandchildren marry?

Family tree after family tree is constructed and considered. Paths are followed until they end. Several groups go one way, but how do they relate to other groups of possible distant relatives?

And then?

With lots of crimes, theres one person who fits, said Moore, who has been a full-time genetic genealogist on the PBS series Finding Your Roots with Louis Gates Jr. and has other television credits as well. Its also pretty common that its a set of brothers. You cant tell. You have to go out and get the DNA.

Because thats the positive match. You determine whose DNA is a probable match and then police get the real thing, either through the suspects willingness to cooperate or investigators' efforts to find abandoned DNA on a cup or a cigarette or in the trash, she said.

Sometimes if there are brothers who dont look the same, DNA can predict eye color or hair color and be used to rule someone out, she said.

But, in the end, the genetic genealogists work is a guidepost in the investigation. While San Diego police said genetic genealogy was used to develop Sipos as a suspect, there must be other factors that point to his potential guilt, Moore said.

Her work is not evidence for court, she said.

This is a tool to point them in the right direction, she said.

The ensuing DNA test would be the evidence, she said.

So, whats all this cost? Sounds expensive.

I guess it depends on perspective, she replied in a followup email. It is extremely inexpensive if it helps solve a case that has been worked for years or decades, using a huge amount of public resources.

Then again, for underfunded departments ... it can be expensive. For this reason, we started JusticeDrive.org to help agencies crowd fund, she said.

The cost varies, Moore continued. It is about $1,500 for the DNA processing and about $3,500 for the genetic genealogy research on most of our cases, so a total of approximately $5,000.

Law enforcement agencies who collect DNA evidence would only have to pay a lab for the DNA analysis and processing, she noted. Man-hours can easily add up to more than $3,500, however, if officers have to trace the genealogy.

Thank you for relying on us to provide the journalism you can trust. Please consider supporting lehighvalleylive.com with a subscription.

Tony Rhodin can be reached at arhodin@lehighvalleylive.com.

Original post:
It led police to John Sipos 51 years after Mary Scotts killing. So, what is investigative genetic genealogy? - lehighvalleylive.com

The Fourth Amendment right to be free from "unreasonableseizure" includes the right to be free from unreasonable arrest or detainment. Does it also include the right to be free from what we might call unreasonable attempts or efforts at arrest or detainment? The late Justice Antonin Scalia thought that it did. "The mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," Scalia wrote for a unanimous Supreme Court in California v. Hodari D. (1991), qualifies as a seizure for Fourth Amendment purposes.

Earlier this month, however, the Supreme Court heard oral arguments in a new Fourth Amendment that asks whether Scalia might have got it wrong.

In Torres v. Madrid (2019), the U.S. Court of Appeals for the 10th Circuit held that no seizure occurred when officers with the New Mexico State Police shot Roxanne Torres twice in the back, because their bullets did not actually stop her from getting away. According to that court, "an officer's intentional shooting of a suspect does not effect a seizure unless the 'gunshotterminate[s] [the suspect's] movement or otherwise cause[s] the government to have physical control over him.'"

Torres was sitting in her car in her apartment building's parking lot when it went down. The officers were there to arrest somebody else. They claimed they approached her because she was acting suspiciously. According to Torres, she thought she was about to be carjacked, later testifying that the officers never identified themselves as they crowded her vehicle. Fearing for her safety, she drove away. The officers then shot her twice as she fled. She only learned that it was the police who pulled the trigger when she was arrested a day later at the hospital.

The Supreme Court heard oral arguments in Torres v. Madrid on October 14. "Roxanne Torres was not seized by either [Officer] Janice Madrid or [Officer] Richard Williamson," New Mexico lawyer Mark Standridge told the justices. "At no time did the officers acquire possession, custody, or control over her. Indeed, [Torres] never stopped in response to the police action. As the officers did not seize [Torres], they cannot be held liable to her for excessive force in violation of the Fourth Amendment."

Unsurprisingly, the Court's most hawkish Fourth Amendment advocate, Justice Sonia Sotomayor, did not seem to find that position particularly palatable. "Counsel, there is an element to the Fourth Amendment that all of our cases, including Hodari, recognized by Justice Scalia," she said, "that has to do with the Fourth Amendment's protection of bodily integrity. It is why we call putting a needle in someone's arm a seizure that requires either probable cause or exigent circumstances, et cetera."

And that conception of bodily integrity, Sotomayor continued, includes "the seizure of the person with respect to the touching of that person because even a touch stops you. It may be for a split second, but it impedes yourmovement and offends your integrity."

What you are asking the Court to do, Sotomayor told Standridge, is "reject the clear line drawn by Hodari and say that Justice Scalia was wrong about what the common law showed." Sotomayor left little doubt that she was with Scalia on that one.

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Invoking Scalia, Sotomayor Presses for Broad Fourth Amendment Protections - Reason

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Twelve years from the third amendment of China's patent law,the fourth amendment was approved by the Standing Committee of theNational People's Congress on October 17, 2020. The newamendment will take effect on June 1, 2021. This article provides adetailed review of the changes from the current patent law.

The first aspect of changes relates to enhanced protection ofpatent rights. Specifically, it includes punitive damages,increased statutory damage, reversed burden of proof, increasedfine for passingoff, and extended time limit for initiatinglitigation.

(1) Punitive Damages and Increased StatutoryDamage

Under the current patent law, the concepts of willfulinfringement and associated punitive damages are not available.These are included in Article 71 of the fourth amendment of thepatent law. Specifically, for willful infringement on a patentright, if the circumstance is serious, the amount of damages may beincreased up to five times of the calculated damages. The amount ofdamages for patent right infringement shall be determined by tryingthe following methods in the following order. First, the amount ofdamages may be determined according to the patentee's actuallosses caused by the infringement or the benefits acquired by theinfringer through the infringement. Where it is difficult todetermine the losses of the patentee or the benefits acquired bythe infringer, the amount of damages may be determined according tothe reasonably multiples of the royalties of that patent. It is tobe noted that compared with the current provisions, Article 71slightly revised the order of the methods for calculating damagesthat should be used. Either the patentee's actual losses or thebenefits acquired by the infringer can be used first, whereas thecurrent law requires that the actual losses must be triedfirst.

If it is difficult to determine the losses of the patentee,benefits of the infringer, or royalties of the patent, thepeople's court may, on the basis of the factors such as thetype of patent right, nature of the infringement, and seriousnessof the case, determine the amount of compensation within the rangefrom RMB30,000 to RMB5,000,000 (US$4,500 to US$750,000). Thisis referred to as statutory damage and it's lower and upperlimits are respectively raised to 3 times and 5 times of thecurrent ones.

(2) Reversed Burden of Proof

One of the biggest difficulties faced by a patent right holderin a patent infringement law suit in China is the lack ofdiscovery. It is often the case that infringement is found butthere is no good evidence to calculate damages as the evidence isin the possession of the defendant. To deal with this problem,Article 71 of the fourth amendment of the patent law provides wherethe right holder has tried his best to provide evidence but theaccount book and materials related to the infringement are mainlyin the possession of the infringer, in order to determine theamount of damages, the people's court may order the infringerto provide the account book and materials related to theinfringement acts.

Where the infringer fails to provide the account book ormaterials or provide fake account book or materials, thepeople's court may determine the amount of damages based on theclaim made and the evidence provided by the right holder. Itfollows that the plaintiff may want to claim high when launching aninfringement law suit. However, one factor that needs to beconsidered is that the court fees are related to the amount atstake. Even if China does not have a loserpay system, i.e.the losing party does not need to cover the cost of the winningparty in a law suit, overclaiming increases the risk ofhaving to pay higher court fees if the plaintiff does not win thecase.

The punitive damages and the increased statutory damages,together with the reversed burden of proof for calculating damagesare likely to significantly increase the amount of damages awardedin future patent infringement cases in China, which will creategreater deterrence to potential infringers.

(3) Increased Fine for PassingOff

Patent passingoff can be generally understood as fraud,such as false patent marking. Article 68 of the fourth amendmentprovides that when handling a patent passingoff case, apatent enforcement authority can confiscate the illegal gains ofthe party who passes off a patent and, in addition, impose a fineof not more than five times the illegal gain, which is increasedfrom the current limit of four times of the illegal gain. In casethere is no illegal gain or the illegal gain is less than RMB50,000(US$7,500), a patent enforcement authority may impose a fine of upto RMB250,000 (US$37,500). It is to be noted that the fine is atype of punishment on the party who passes off a patent but thepatent right holder will not gain any financial benefit from thefine. Of course, in addition to confiscation and fine, the partywho passes off a patent also has to bear civil liability, e.g.compensation to the patent right holder.

According to the current patent law, when a patent enforcementauthority investigates and handles the suspected passingoffof a patent, it may, based on evidence obtained, (1) inquire theparties concerned and investigate the circumstances related to thesuspected illegal act; (2) conduct onsite inspection of theplaces where the suspected illegal act is committed; (3) review andduplicate the relevant contracts, invoices, account books and otherrelated materials; (4) inspect the products related to thesuspected illegal act; and (5) seal or confiscate the productswhich pass off the patent.

In China, a patent right holder can enforce a patent rightthrough judicial route, i.e. people's court or administrativeroute, e.g. local IP offices. However, local IP offices' powerto review and duplicate the relevant contracts, invoices, accountbooks and other related materials and to seal or confiscate theproducts which pass off the patent, as mentioned above, is limitedto patent passingoff cases only. The fourth amendment of thepatent law still does not give local IP offices such power inhandling patent infringement cases.

(4) Extended Time limit for InitiatingLitigation

According to Article 74 of the fourth amendment of the patentlaw, the time limit for taking legal action against patent rightinfringement was extended from two years to three years, commencingfrom the date when the patentee or interested party knows or shouldhave known of the infringing activity and the infringer. Similarly,if a patentee wants to sue another party for compensation duringthe period from the publication of the invention patent applicationto the grant of the patent right, the time limit for taking legalaction is also extended from two years to three years, commencingfrom the date when the patentee knows or should have known of theuse of the patent by that other party. However, the time limitshall commence from the date when the patent right is granted, ifthe patentee knows or should have known of the use before thepatent right is granted.

In the fourth amendment, the second aspect of changes from thecurrent patent law relates to design patent practice. Specifically,it includes extended patent term for design, allowance of partialdesign and possibility of claiming domestic priority for designapplications.

According to Article 42 of the fourth amendment of the patentlaw, the term of a design patent shall be 15 years, extended from10 years as prescribed in the current patent law. It is believedthat this change is part of China's effort to join the HagueAgreement.

Article 2 of the fourth amendment redefines design as any newdesign of the shape, the pattern or their combination, or thecombination of the color with shape or pattern, of the whole or apart of a product, which creates an aesthetic feeling and is fitfor industrial application. This makes it possible to protect aportion of a product, often referred to as "partialdesign". Under the current law, a design patent can onlyprotects a complete product but not a portion of a product whichcannot be separated or cannot be sold and used independently.Allowance of partial design makes design practice in China moresimilar to that in many other jurisdictions and offers broaderprotection of design patents. Without having to limit their designpatent to specific complete products even though the design pointsare only related to certain part of such products, design patentright holders will be in a better position to protect themselvesfrom infringers who may be able to avoid the risk of infringementby only copying their design points and using them in a differentshaped product.

The allowance of partial design also renders design patentprotection for graphic user interface (GUI) more useful. Applicantsdo not have to protect the product, i.e. the display screen panel,with the GUI, in their design patents, as under the currentpractice. Instead, a design patent may be used to protect thedesign of the GUI itself, with the other parts of the productdisclaimed and presented by dotted lines. Even in the GUI itself,some parts may be disclaimed through the use of dotted lines. Itwill be interesting to see what standard will be used in theexamination of partial design application.

Article 29 of the fourth amendment of the patent law includesdomestic priority for design applications, which is not availableunder the current patent law. Specifically, if within 6 months fromthe date an applicant first files an application for a designpatent in China, he files another design application in China forthe same subject matter, the applicant may enjoy the right ofpriority. Under the current domestic priority practice forinvention and utility model applications, when domestic priority isclaimed, the first filed Chinese application will be deemed to bewithdrawn. Therefore, it is not possible to keep both applications.It is reasonable to believe that this also applies to designapplications.

In the fourth amendment, the third aspect of changes from thecurrent patent law relates to drug patents. Specifically, itincludes patent term extension and patent linkage system.

(1) Patent Term Extension

Article 42 of the fourth amendment provides that in order tocompensate for the time spent in the review and marketing approvalof new drugs, at the request of the patentee, CNIPA (China NationalIntellectual Property Administration) may grant compensation forthe term of the invention patent related to the new drug which hasbeen approved for marketing in China. The compensation period shallnot exceed five years, and the total effective period of patentright after the new drug is approved for marketing shall not exceed14 years.

It is to be noted that "Bolar exemption" is availableunder the current patent law, i.e. use of a drug patent for thepurpose of application for drug approval is not considered a patentinfringing activity, but extension of patent term is not available.The inclusion of patent term extension in the fourth amendment ofthe patent law better balances the interest of innovative drugcompanies and the generic companies. There are no detailedprovisions available yet regarding how the extension will becalculated. However, it can be expected that this new provisionencourages innovative drug companies, especially foreign drugoriginators to bring their new drugs to the Chinese market as earlyas possible and hence make new drugs more accessible to the Chinesepeople.

(2) Patent Linkage System

Article 76 of the fourth amendment of the patent law providesthat in the process of review and marketing approval of a drug, ifa dispute arises between the applicant for the marketing approvalof the drug and the relevant patentee or interested party due tothe patent right related to the drug applying for registration, therelevant party may bring a suit in the people's court andrequest a judgment be made on whether the related technicalsolution of the drug applying for registration falls within thescope of protection of other's drug patent. The drug regulatorydepartment of the State Council may, within the prescribed timelimit, make a decision on whether to suspend the marketing approvalof the relevant drug based on the effective judgment of thepeople's court.

The applicant for marketing approval of a drug and the relevantpatentee or interested party may also request an administrativeruling from CNIPA for the dispute over the patent right related tothe drug applying for registration.

Article 76 further provides that the drug regulatory departmentof the State Council, in conjunction with CNIPA, shall formulatespecific measures for the connection between the marketing approvalof drugs and the resolution of patent disputes in the stage ofapplication for marketing approval of drugs, which shall beimplemented after the approval of the State Council.

The newly added article introduces the socalled"patent linkage system" into the patent law, whichprovides an early resolution mechanism for drug patent disputes,aiming to resolve potential patent disputes before relevant drugsare marketed. However, by the completion of this article, detailedrules in this area still need to be formulated, such asavailability of experimental data protection period for drugs, andthe establishment of China's Patent Information RegistrationPlatform for Approved Drugs, equivalent to the correspondingcontent in "Approved Drug Products with TherapeuticEquivalence Evaluations" in the US, commonly known as the"Orange Book". Other drug related measures may also needto be updated to reflect the changes in this regard, such as anupdated application process for drug approval, or a revised Catalogof Approved Drugs.

As a matter of fact, on September 11, 2020, the National MedicalProducts Administration and CNIPA jointly issued"Implementation Measures for the Early Resolution Mechanismfor Drug Patent Disputes (Trial Version) (Draft for Comment)"for public comments. On April 25, 2018, the National MedicalProducts Administration issued "Implementation Measures forthe Protection of Drug Experimental Data (Trial Version)" forpublic comments. Neither one has been finalized and implementedyet. However, it is reasonable to expect that a full system similarto that established by HatchWaxman Act in the US will beavailable in China soon.

Articles 50 to 52 of the fourth amendment of the patent lawprovide an "Open License" system. Specifically, apatentee may express in writing to CNIPA its willingness to licensetheir patents to anyone and specify relevant royalties and methodof payment. CNIPA will announce the patentee's statement andoffer the open license. Patent right evaluation report should beprovided with the offer of an open license for utility model ordesign patent. If a patentee withdraws its offer of open license,it must do so in writing and CNIPA will announce the withdrawalstatement. In this case, any previously granted open license shallnot be affected.

According to Article 51, anyone that is willing to exploit thepatent which is open licensed gets the license to exploit thepatent after it informs the patentee in writing, and pay thelicense fee according to the open license announcement. In otherwords, anyone that complies with the above provision automaticallygets a license. In addition, the same article specifies that thepatentee that offers the open license and potential licensees canstill negotiate on license fees. However, the patentee that offersthe open license may only grant ordinary licenses and shall notgrant a sole or exclusive license for the patent concerned.Moreover, if any dispute arises with respect to the open license,the relevant parties may either request mediation from CNIPA orlaunch a law suit in people's court.

Interestingly, in order to encourage patentees to offer openlicenses, the fourth amendment of the patent law provides thatduring the implementation period of the open license, the annuitiespaid by the patentee shall be reduced or exempted.

(1) Patent Term Adjustment

Patent term adjustment is made available in Article 42 of thefourth amendment of the patent law. It is believed that this changewas made in line with the ChinaUS phase 1 trade agreement.Specifically, where an invention patent right was granted afterfour years from the filing date of the invention patent applicationand after three years from the date of the substantive examinationrequest, CNIPA shall, at the request of the patentee, providecompensation for the term of the patent with respect to theunreasonable delay in the examination stage of the inventionpatent. Not detailed calculation method is available yet.

(2) A New Grace Period Provision

Article 24 of the fourth amendment includes a new provision thatrelates to grace period. Specifically, disclosure of an inventionfor public interest in case of national emergency can enjoy thegrace period of 6 month.

(3) Patent Right Evaluation Report

Under the current patent law, if a dispute over patentinfringement involves a utility model patent or a design patent,the people's court or the administration office may require thepatentee or the interested parties to present a patent rightevaluation report prepared by the CNIPA through searching,analyzing, and assessing the relevant utility model or design,which shall serve as evidence for trying or handling the patentinfringement dispute. Currently only patentees or the licenseesthat have the right to launch law suits have the right to requestpatent right evaluation reports. In the fourth amendment of thepatent law, it is provided that relevant parties from both sides ofthe law suit may request the patent right evaluation reportproduced by CNIPA. This means that not only the patentee canrequest the CNIPA to produce the patent right evaluation report butthe defendant is also able to do so. It provides a new vehicle foralleged infringers to defend themselves.

However, for a party that is not involved in an infringement lawsuit but is concerned with potentially infringement on a utilitymodel or a design patent, it is still not possible to request apatent right evaluation report from CNIPA.

(4) Extended Deadline to Submit PriorityDocuments

According to Article 30 of the fourth amendment, an applicantwho claims priority from an invention or a utility model patentapplication shall submit a written declaration at the time offiling an application and submit copies of the patent applicationdocuments filed for the first time, within 16 months from the dateon which the invention or utility model patent application wasfiled for the first time. In other words, for invention or utilitymodel applications, the deadline for submitting priority documentsis extended from 3 months from claiming priority to 16 months fromthe priority date.

Copies of priority documents for claiming priority from a designapplication should be submitted within 3 months from filing anapplication for design patent.

(5) AntiMonopoly Provision

The fourth amendment of the patent law includes a new Article 20which is a very broad antimonopoly provision. Specifically,it provides that the application for and the use of patent rightsshould follow the principle of good faith. Patent right should notbe abused to damage public interest and other's legitimaterights. Abuse of patent rights to exclude or restrict competition,which constitutes monopolistic behavior, shall be dealt with inaccordance with the AntiMonopoly Law of China. Currently,there are several laws, regulations or judicial interpretations inplace to address the abuse of intellectual property right. However,it will be interesting to see how this provision is applied inlitigation in the future.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Review Of The 4th Amendment Of China's Patent Law - Intellectual Property - China - Mondaq News Alerts

With increasing frequency, law enforcement is using unconstitutional digital dragnet searches to attempt to identify unknown suspects in criminal cases. In Commonwealth v. Dunkins, currently pending before the Pennsylvania Supreme Court, EFF and the ACLU are challenging a new type of dragnet: law enforcements use of WiFi data to retrospectively track individuals precise physical location.

Phones, computers, and tablets connect to WiFi networksand in turn, the Internetthrough a physical access point. Since a single access point can only service a limited number of devices within a certain range, WiFi networks that have many users and cover larger geographic areas have multiple stationary access points. When a device owner moves through a WiFi network with multiple access points, their device seamlessly switches to the nearest available point. This means that an access point can serve as a proxy for a device owners physical location. As an access point records a unique identifier for each device that connects to it, along with the time the device connected, access point logs can reveal a devices precise location over time.

In Dunkins, police were investigating a robbery that occurred in the middle of the night in a dorm at Moravian College in eastern Pennsylvania. To identify a suspect, police obtained logs of every device that connected to the 80-90 access points in the dormabout one access point for every other dorm roomaround the time of the robbery. From there, police identified devices belonging to several dozen students. They then narrowed their list to include only non-residents. That produced a list of three devices: two appeared to belong to women and one appeared to belong to a man who later turned out to be Dunkins. Since police believed the suspect was a man, they focused their investigation on that device. They then obtained records of Dunkins phone for five hours on the night of the robbery, showing each WiFi access point on campus that his phone connected to during that time. Dunkins was ultimately charged with the crime.

We argued in our brief that searches like this violate the Fourth Amendment. The WiFi log data can reveal sensitive location information, so it is essentially identical to the cell phone location records that the Supreme Court ruled in Carpenter require a warrant. Just like cell phone records, the WiFi logs offered the police the ability to retrospectively track a persons movement, including inside constitutionally protected spaces like students dorm rooms. And just as the Carpenter court recognized that cell phones are essential for participation in modern life, accessing a college WiFi network is equally indispensable to college life.

Additionally, we argued that even if police had obtained a warrant, such a warrant would be invalid. The Fourth Amendment requires law enforcement to obtain a warrant based on probable cause before searching a particular target. But in this case, police only knew that a crime occurredthey did not have a suspect or even a target device identifier. Assessing virtually the same situation in the context of a geofence warrant, two federal judges recently ruled that the governments application to obtain location records from a certain place during a specific time period failed to satisfy the Fourth Amendments particularity and probable cause requirements.

The polices tactics in this case illustrate exactly why indiscriminate searches are a threat to a free society. In acquiring and analyzing the records from everyone in the dorm, the police not only violated the defendants rights but they also wrongly learned the location of every student who was in the dormitory in the middle of the night. In particular, police determined that two women wholly unconnected to the robbery were not in their own dorm rooms on the night of the crime. Thats exactly the type of dragnet surveillance that the Fourth Amendment defends against.

The outcome of this case could have far-reaching consequences. In Pennsylvania and across the nation, public WiFi networks are everywhere. And for poor people and people of color, free public WiFi is often a crucial lifeline. Those communities should not be at a greater risk of surveillance than people who have the means to set up their own private networks. We hope the court will realize whats at stake here and rule that these types of warrantless searches are illegal.

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EFF Files Amicus Brief Arguing That Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment - EFF

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China's National People's Congress has approved theFourth Amendment to Chinese Patent Law on October 17, 2020. Theamended law will be effective from June 1, 2021. We also expectthat the Implementing Regulations of the Chinese Patent Law and thePatent Examination Guidelines will also be amended accordingly,before the effective date of the amended law. These regulations andrules will provide more explanation and details regarding theAmendment.

Although the approved version of the Fourth Amendment issomewhat different from the previous versions, we do not think itis necessary to discuss these differences. Rather, we will discusskeys changes in the approved version as compared to the currentlaw. We haveparaphrased and highlighted inblue the key changes below,followed by ourcomments in black.

Article 2.4 Partial designs will be allowed.

A much welcomed change. It will provide flexibility to allapplicants and much convenience to applicants from countries wherepartial designs are allowed.

Article 15.2 For service-inventions, the state encouragesemployers to implement ownership incentives and adopt means such asequities, options, and profit sharing, etc., to allow the inventorsto reasonably share the benefits of innovation.

Although the provision is only an "encouragement",rather than a requirement, we do not think that it is necessary orproper. We think that the employers should be left freely, withinthe boundary of law, to decide on how to reward and remunerate theinventors. We look forward to more details.

Article 20.1 In exercising the application or patent right, oneshould follow the principle of honesty and credibility, but shallnot abuse the right to harm public interest or other'slegitimate rights.

We think that the stated principle is appropriate, but lookforward to further interpretation and details.

20.2 Abusing patent right, excluding or restricting competition,if constituting monopolistic conduct, shall be treated according toAnti-Monopoly Law of China.

This provision corresponds with the Anti-Monopoly Law.

Article 24.1 (1) Newly added exception to novelty-defeatingdisclosures: Disclosures made within 6 months of application dateand for public interest purposes during national emergency orextraordinary situation.

We think that a typical example of the exception would be forsomeone to publish a research paper regarding treatment or vaccinefor the corona virus before filing the relevant patent application,but look forward to further interpretation and details.

Article 29 Applicant may claim priority to its own first-filedChinese design patent application within six (6) months of thefirst filing and for the same subject matter.

Applicant can already do so in invention and utility modelpatent applications.

Article 42.1 Design patent term will be extended to fifteen (15)years, from the current ten (10) years.

It is generally believed that this provision will help clear theway for China to join the Hague Agreement, which other majorcountries have all joined.

42.2 For patents granted after four (4) years since applicationdate and three (3) years since request for substantive examination,applicant may request for patent term extension on the basis ofunreasonable delays during prosecution of the patent, except fordelays caused by the applicant.

We look forward to further details.

42.3 In order to compensate for time used for new drugevaluation and approval, the term of a relevant patent for anapproved new drug in China may be extended by up to five (5) yearsupon request by patentee. However, after the new drug entersmarket, the total remaining term of the relevant patent may notexceed fourteen (14) years.

A much welcomed provision for the pharmaceutical industry. Welook forward to further details.

Articles 50 52 Provisions regarding Open PatentLicenses, setting out mechanisms and procedures whereby patentowners can publish, through the CNIPA, their intentions to licensetheir patents to any interested party. Annuities will be reduced orwaived during the license period.

The provisions will help to further commercialize Chinesepatents. We look forward to more details.

Article 66.2 In an infringement action involving a utility modelor design patent before court or administrative agency, all partiescan submit the Patentability Assessment Report on their own.Currently only the patentee and interested party can do so uponrequest by court.

The report will be more important when enforcing utility modelor design patents.

Article 70.1 CNIPA, at the request of patentee or interestedparty, may handle patent infringement disputes that havesignificant impact nationwide.

We think this is an inappropriate enlargement of the CNIPA'sauthority and jurisdiction, but look forward to more details.

70.2 Patent administrative authority of a local government, atthe request of patentee or interested party to handle patentinfringement disputes, may combine cases involving the same patentwithin its jurisdiction. The authority may also request a higherlevel local government authority to handle cases involving the samepatent across different jurisdictions.

This is further streamlining of the administrativeauthority's handling of patent disputes.

Article 71.1 Patentee's loss and infringer's gain aretreated equally as basis for determining damage amounts.

This provides more option/freedom to the patentee in provingdamage amounts.

71.1 In case of willful infringing act, if the circumstances aresevere, the court may set the amount of damages to be one (1) tofive (5) times of the determined amount.

While this may provide more deterrence, it could also beexcessive.

71.2 Statutory damage amount will be under RMB 5 million (aboutUS$715,000). Currently the amount is under RMB 1 million.

A much welcomed change as damage amounts in most cases are stilldetermined based on the statutory amount.

71.4 In order to determine the amount of damages, if theplaintiff has done everything within its ability and the relevantaccount books and materials are mainly under the infringer'scontrol, the court may order the infringer to provide such accountbooks and materials. If the infringer does not provide or providefalse account books or materials, the court may determine thedamage amount by considering the plaintiff's request andevidence.

This will make it easier for the patentee to prove the damageamount.

Article 74.1 Statute of limitation for filing infringementlawsuit is three (3) years (currently two years) from when patenteeknew or should have known the infringement action and theinfringer.

This is in line with China's civil procedure law.

Article 76.1 During administrative review and approval for adrug, the party seeking drug approval and the patentee of arelevant patent may initiate legal proceeding with the court todetermine whether the drug falls within the protection scope of thepatent. The drug regulatory agency, within a specified period oftime, may decide whether to suspend the drug review and approvalprocess based on an effective judgment by the court.

This generally sets up a mechanism for settling patent disputesin drug regulatory review and approval process. But there are manydetails that will need to be clarified.

76.2 The parties may also request the CNIPA to make anadministrative decision regarding the patent dispute.

This is an enlargement of the CNIPA's jurisdiction. We lookforward to more details.

76.3 The Drug Regulatory Authority and the CNIPA will formulatespecific linkage methods regarding drug marketing approval andpatent dispute resolution during the approval period.

We look forward to more details.

As can be seen, the Fourth Amendment introduced a number ofmajor changes to the Chinese Patent Law. At the same time, theimplementation of these changes will largely depend oninterpretation and further details regarding the provisions. Welook forward to the corresponding Implementing Regulations by theState Council and the Patent Examination Guidelines by the CNIPA inthe coming months. We will keep you informed.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

See the article here:
Main Points Of The Fourth Amendment To Chinese Patent Law (Approved On October 17, 2020, Effective From June 1, 2021) - Intellectual Property - China...