Mediaboss Marketing

The Standing Committee of the National Peoples Congress promulgated a new revision Patent Law on October 17, 2020. After more than a decade since previous revision in 2008, the Amendment marks the fourth instance in which the Patent Law has been revised. Several new provisions are deemed quite unique in comparison to other IP systems in the world. The Amendment will not become effective immediately but will instead be scheduled until June 1, 2021. During the time gap between now and the date of becoming effectiveness, it is believed that more subsidiary or auxiliary regulations will be put into place in support of the Amendments legal framework. A summary of the major changes formulated in the Amendment are elaborated on below.

Design Patent (2, 29, and 42)

First and foremost, the revision adds language to Article 2 of the Patent Law which makes partial designs patentable. The amendment redefined a patent-protectable exterior design as, either a whole or in partial, the shape, graphic, or the combination thereof that is colored or not on a product appealing to visual effect and adapted to industrial applicability.

The patent term for design patents extends to 15 years from the date of filing, as opposed to 10 years currently. The 15-year term aims to meet conditions set forth in the Hague Agreement which CNIPA vows to concede to.

The Amendment permitted a domestic design application as a valid priority basis for another design application. Specifically, a design patent applicant can claim priority to another earlier Chinese design application filed within six (6) months. The earlier application is deemed withdrawn on the filing date of the later application.

Term Extension and Adjustment (42)

A patent-term compensation mechanism has also been introduced by the Amendment. For an invention patent granted after four (4) years from filing or three (3) years from examination, the patentee may request a term extension to make up for the unreasonable delay attributable to the examiner during examination.

Furthermore, the Amendment provides a mechanism to compensate for the time of unenforceability of a drug patent due to a market approval examination by the National Medical Products Administration (NMPA, f.k.a. the CFDA). The patentee may request a term adjustment to compensate for the unenforceable period for a maximum of 5 years and the remaining patent term in total caps at 14 years after the launch of a new drug.

However, a calculation formula regarding the extension or adjustment of a patent term has yet to appear.

Remuneration (15)

The employer is encouraged to reward its inventor/designer employees by bestowing financial assets such as companys shares, options or dividends, so that the inventor/designer employees may reasonably profit from the revenue generated by their invention or design. However, the option of bestowing financial assets is merely a recommendation and is expected to be more likely adopted by smaller startup companies which have slow cash flows. As it does not authoritatively grant an inventor/designer employee a right to choose, the employee cannot demand for shares over the cash which when the employer so decides.

Damages (71)

The Amendment also significantly increases punitive damages for infringements. For willful infringement with grave malicious intention, the infringing party may be subject to punitive damages amounting to up to five (5) times of the found injury. The five-fold ceiling is considered revolutionary as it is probably one of the highest available punitive multiples among major IP countries.

Also included in the new Amendment is an increase in the statutory damages which have been increased from RMB 30,000 to 5,000,000 (about USD 4,500 to 760,000) awardable at the courts discretion depending on numerous factors apart from the standard calculation basis for damages, such as the type of patent or the severity of the infringement.

Rule of Evidence (71)

To calculate damages, the default rule of evidence requires the patentee/plaintiff to demonstrate documentary materials to support its own findings in damage amount. Subject to certain conditions, the Amendment allows a patentees burden of proof to be shifted to an accused infringer/defendant. When the patentee/ plaintiff has exhausted all means in an effort to demonstrate the amount of damages, the court may order the defendant to present hitherto undisclosed information such as ledgers, books or other financial records to the court. If the infringer/defendant fails to do so, the court may support the patentees preliminary evidence of damages calculation.

Statutory Time Limit (74)

The patentee will have more time in which to initiate an infringement action under the Amendment. A lawsuit against an infringer may be filed within three (3) years, as opposed to the current two (2) years, from the time when the patentee or a person of interest knows or is supposed to know both the relevant facts of infringement and of the infringer.

Similarly, in order to enforce the invention applications provisional right after publication but before grant, the patentee may now claim for reasonable royalty within three (3) years, as opposed to the current two (2) years from the time the patentee knows or is supposed to know the third partys activities of employing the invented technology. However, the three-year time limit will only be calculated from the date in which the patentee or interested parties knew or should have known the third partys activities of use.

Grace Period (24)

Under the current law, to enjoy a grace period of six (6) months to exempt the loss of novelty, the applicant must meet one of the three statutory events: (I) display for the first time in a State endorsed international exhibition, (II) publication for the first time in an academic seminar, and (III) disclosure by another without the applicants consent. The Amendment did not make grace period exemption available to all facts of prior disclosure, different from what some legal experts once expected. Instead, the Amendment only added a fourth fact: publication for the first time as per public interests in response to the national emergency or extraordinary situations.

Open License (48-52)

The patentee may grant a license to anyone after paying a pre-determined license fee. The China National IP Administration (CNIPA) will approve and make public the patents statement of open license intent so that anyone interested in it can join and be bound by the agreement. If the patent opened for license is a utility model or a design patent, a patent evaluation report is additionally required. An open license statement can later be withdrawn. A withdrawal, however, will not revoke any ongoing and effective license(s).

Passing off (68-69)

Fraudulent use of others patent(s) is an offense and subject to civil, administrative, and/or criminal liabilities. The Amendment elevates the ceiling for administrative fines from four to five times the offenders illegal gains. For a case in which the illegal gains range from RMB 0 50,000, the fine is capped at RMB 250,000. In investigating a case, the local IP enforcement agency may exercise the power to (1) enquire relevant parties of the facts regarding an infraction; (2) conduct an on-site inspection of the suspected offenders premises; (3) review and duplicate evidential materials such as contracts, invoices and ledgers.; (4) examine products relevant to the infraction; and (5) seize or detain a product provable of counterfeiting a patent. Importantly, in instances in which the enforcement agency approaches a suspect in response to a patentee or interested partys report, the agency may only engage in inquiry, on-site inspection, and suspected product examination, or the measures listed in items (1), (2), and (4).

Patent Linkage (76)

The Amendment paved the way for a patent and pharmaceutical linkage system. In September the State Council released a specific document to signal the regulatory introduction of the patent linkage system.[1] As the governing statute, the Patent Law needs to construct a superior framework to accommodate the system.

According to the Amendment, during the review for market approval of a new drug, the approval applicant and the patentee having any legal disputes over the new drug-related patent(s) may file a lawsuit to the court. The court will then rule whether the new drug pending for approval infringes the patent(s) in dispute. The agency responsible for the regulation of drugs under the State Council (National Medical Products Administration), may order to suspend an approval review process in reference to the courts binding decision. Rather than a court of law, the approval applicant and the patentee may opt to seek an administrative resolution in the CNIPA for the drug-related patent disputes.

Continued here:
China Passed the Fourth Amendment to Patent Law - Lexology

Supreme Court Rolls Out Draft Civil Procedures for Patent Linkage Litigation

A Brand New Provision: Patent Linkage Links Drug Approval to a Clear Patent Position

In October of 2020 China passed the 4th amendment of the patent law which ushered in some sweeping changes in certain areas that are especially exciting for life science companies. One of the most important changes is the introduction of patent linkage linking the marketing approval of new drugs to a positive patent non-infringement position.

Article 76 of the newly amended Chinese Patent Law lays out basic provisions of how patent linkage will work. Owners of patents listed in the Chinese Marketed Drug Patent Information Registration Platform[1] (China Orange Book) or other interested parties[2] can sue potential infringers applying for marketing approval of new drugs, requesting the court to make a judgment on potential patent infringement. This is similar to an ANDA litigation in the US. Similarly, drug marketing approval applicants (Applicants), interested parties, or patentees can also request an administrative ruling on the dispute over an issued patent related to the drugs for which marketing approval is sought, e.g., requesting a judgment on whether a drug falls within the scope of a patent.

The Supreme Peoples Court has just issued draft regulations for comment regarding how new Article 76 will work in conjunction with civil procedure law. The period to submit comments ends December 14, 2020, and the final version will come into force June 1, 2021, together with the new Chinese Patent Law.

Below, weve summarized some of the key points. In general, the draft regulations are quite logical and provide some clarity on how this new type of litigation will work. Notably, the Beijing IP Court will handle these first-instance civil cases. The draft regulations also provide insight into the basic necessary requirements for this type of litigation. If the litigation cannot be resolved before drug approval, the patentee can still sue the potential infringer even after drug approval. However, at that point drug approval is not linked (i.e. contingent upon) the patent status, and the Chinas National Medical Products Administration (NMPA, formerly the CFDA) will not withdraw approval. Finally, the rules highlight potential punishments that could result if parties abuse the system and file frivolous lawsuits to bully others.

Requirements for Bringing a Lawsuit

Under the rules of Civil Procedure in China, anyone bringing a lawsuit must provide reasonable grounds. For these ANDA-like litigations, a plaintiff (e.g., an Applicant) must provide the following information:

The court shall not accept claims made relying on patents which cannot be listed in the China Orange Book (e.g., process patents). Even if the claim was previously accepted, it will not be included in the trial stage.

Additional plaintiffs may sue under the same patent, and the court may combine cases and conduct joint trials. Third party participants in compliance with the relevant provisions of the Civil Procedure Law are also allowed.

Ways to Stay or Conclude a Lawsuit

The court shall not stay a litigation because of a concurrent pending patent invalidation. However, if the patent is ultimately declared invalid by CNIPA (The Chinese Patent Office), the court can use that information to make a final judgment (e.g., ruling that the New Drug does not fall within the scope of the Related Patent).

If the plaintiff claims a valid prior art defense, a statutory reason that results in a judgment of no infringement, or other factor that clearly invalidates the patent at issue, the court may reject the patentees litigation request and instead confirm that the New Drug does not fall within the scope of the Related Patent, thus concluding the lawsuit.

During Litigation: Injunctions, Confidentiality, and Criminal Liability

During the litigation, the patentee may apply for an injunction on activities such as manufacturing, use, sale, offer to sell, or importation of the drug product for business purposes within the validity period of the patent, provided that the patentee provides a guaranty. This way, if the patentee ultimate loses the lawsuit, the New Drug company is entitled to damages resulting from the delay caused by the injunction.

The parties must maintain confidentiality of trade secrets obtained during litigation, and they will bear civil liabilities if they dont comply, and will be held criminally responsible if action constitutes a crime.

Typically speaking, the court will determine infringement based on whether the New Drug falls within the scope of the issued claims in the Related Patent. However, if the technical data submitted to the IP Court is inconsistent with technical data submitted to the NMPA and it would affect the trial results, the IP Court may follow Article 111 of the Civil Procedure Law on a case-by-case basis to rule for punishments. In some cases, this means that the Peoples Court may fine, detain, or hold infringers criminal responsible depending on the seriousness of the actions.

If the court determines the New Drug falls within the scope of the issued claims in the Related Patent, the patent owner or the interested parties can bring a separate infringement lawsuit and the previous courts judgment can be used directly.

If the court hands down a judgment of infringement after NMPA approves the New Drug, the patentee can still file a patent infringement lawsuit against the company marketing and manufacturing the New Drug.

If the patentee or interested party abuse the court system (e.g., filing frivolous lawsuits to intimidate and then withdrawing them), the New Drug applicant can still sue for compensation for damages in the Beijing IP Court.

Eagle Thoughts

In general, the procedures are quite reasonable and overall seem logical. It is worth noting that the Chinese drug patent linkage system maintains a parallel system including both administrative and judicial procedural paths. Unlike in other jurisdictions, the Chinese IP system has long relied on administrative procedures for addressing certain types of patent disputes.

All in all, we are thrilled to see many of these draft provisions coming out one after another. June 2021 is just around the corner, and the implementation of this new Fourth Amendment of the Chinese Patent Law will dramatically change the landscape and business calculation for foreign companies, especially foreign drug companies, as they consider how aggressively to build their patent portfolios in China.

More here:
How will Civil Cases Work under the Patent Linkage Provision in the New Chinese Patent Law? - Lexology

EDITOR:

As I am looking at my real estate and personal property tax statements, I was also thinking about my experience with the real estate assessment process. I was over-assessed as having a finished basement with no proof from the assessors office, like a building permit, etc. I had to prove that I did not have a finished basement with a home search. The home search is against the Fourth Amendment and you can refuse but then you will be assessed at the highest rate.

The error was an over-assessment of $10,000. Less than five percent of taxpayers appeal and the appeal process is designed to intimidate rather than be fair.

Sen. Tony Luetkemeyer has hopefully stopped this routine process with legislation that puts the burden of proof on the assessors office rather than the taxpayer. This over-assessment strategy has taken place for many years, with many homeowners unaware that they have been over-assessed. An audit needs to be done to correct this and return the money to the taxpayers.

To request an audit of the Platte County Assessors office, please contact:

Toll-free: 800-347-8597

Email: moaudit@auditor.mo.gov

State Auditors Office

301 West High Street, Room 880

P.O. Box 869

Jefferson City, MO 65102

Dr. Tim Altenburg DDS

Platte County

The rest is here:
Assessors office should be audited - The Platte County Landmark Newspaper

Assembly Approves Verrelli, Benson, & Zwicker Bill Protecting Employees From Employer Tracking Device Violations

Legislation Now Heads to the Senate

(TRENTON) To protect workers privacy, Assembly Democrats Anthony Verrelli (D- Mercer, Hunterdon), Daniel Benson (D- Mercer, Middlesex), and Andrew Zwicker (D-Hunterdon, Mercer, Middlesex and Somerset) sponsor legislation to ensure that employers provide written notice before using a tracking device in an employees vehicle. The bill was approved Monday 47-25-2 by the full Assembly.

The bill (A-3950) would provide regulation declaring companies using a tracking device in an employees personal vehicle, or the use of tracking devices in a company-provided vehicle without a written notice to an employee, as a crime of the fourth degree. A crime of the fourth degree includes potential imprisonment up to 18 months, a fine up to $10,000, or a combination of the two punishments.

There are currently no federal privacy laws barring businesses from tracking employees with GPS systems. Under the current legal landscape, companies do not always have to inform their employees of tracking devices, which was evident in a recent survey where more than 22 percent of employees claimed to be unaware they would be tracked when first starting a job.

This bill would further the rights of New Jersey employees under the U.S. Constitutions Fourth Amendment which protects against unreasonable searches and seizures by prohibiting tracking devices in an employees personal vehicle and only allowing such devices in a company-provided vehicle after issuing a written notice.

Assemblymen Verrelli, Benson, and Zwicker issued the following joint statement after approval of the legislation:

In order for the FBI or other law enforcement agencies to track the location of our cars, a judge must first approve a warrant. Currently, if an employer wants to track an employees vehicle, there is no clear regulation prohibiting them from doing so.

As long as companies do not have to disclose the use of tracking devices in employee vehicles, or provide a written notice for the use of such devices in company-provided vehicles, employees privacy will remain at risk. Our goal is to protect the citizens of New Jersey and the privacies included in the Fourth Amendment. This bill will help accomplish that.

(Visited 15 times, 1 visits today)

Visit link:
Assembly Approves Verrelli, Benson, & Zwicker Bill Protecting Employee's From Employer Tracking Device Violations - InsiderNJ

James Martin/CNET

Fast cars, Champagne and virtual private networks -- some goods are best imported. It's not about snobbery; it's about getting the best value for your dime, especially in the case of VPNs. Sure, there are plenty of homegrown US-based VPNs that offer inexpensive subscriptions with which you can game and stream media to your heart's content. But for those of us seeking out top-notch privacy protection, I've become as sure about importing VPNs as I am about the Champagne.

One of my fundamental criteria for ranking a VPN provider is the jurisdiction of its parent and affiliate companies. When evaluating its overall capacity to protect user privacy -- before I even check into its technical specifications for encryption -- I start by looking at whether a VPN service is headquartered outside of the US and the reach of its intelligence-sharing partner countries, like those comprising the Five, Nine or 14 Eyes compacts.

Subscribe to the Mobile newsletter, receive notifications and see related stories on CNET.

If I find that a VPN is headquartered in the US or any of those member nations, even if its technology is on par with its non-US peers, I cannot in good conscience say it offers its users globally competitive privacy. Why? Because, as far as its government's relationship to technology is concerned, the US is a privacy-averse country, and your data may not be protected from federal eyes.

Following the revelations laid bare by NSA whistleblower Edward Snowdenin 2013, which detailed the existence of sweeping mass domestic surveillance -- and the continued renewal of the authorizing Patriot and US Freedom acts -- it's simply no longer reasonable to expect competitive privacy standards from any VPN headquartered in the States while also expecting its compliance with the law of the land. (Yes, a federal judge just declared the bulk data collection unlawful -- but that's closing the barn door after the cows have escaped.)

Read more:Best VPN services of 2020

When functioning under normal circumstances, VPNs operate by creating an encrypted tunnel through which communications can be safely transported from sender to destination. The debate is ongoing over whether government computing power is capable of -- or has already successfully accomplished -- decrypting the internet standard AES-256 (which is the common, minimum type of encryption you'd expect from a VPN). But the question isn't whether the NSA can decrypt your messages. It's whether you trust your VPN to go up against the US government should it request your VPN log your activity, and whether you trust your VPN to tell you about such a request when it's forbidden to do so.

Based on what fraction of US government interference the world has seen in the VPN realm, I don't have that trust. I personally do not trust any current US VPN company to go to bat for me in those kinds of circumstances, nor to hold up against the potential legal pressure that may be brought to bear should a company try to resist. This opinion is neither brave nor unusual.

In 2018, US-based VPN IPVanish cooperated secretly with the FBI, logging user data for the agency during a criminal investigation. Riseup, another US-based VPN, was prevented from updating its warrant canary in 2017 when the FBI handed the company a couple of subpoenas and silenced it with a gag order. PureVPN, based in Hong Kong with US servers, wasn't outside of the reach of the FBI when it handed over user data in 2017. HideMyAss -- a VPN company located in the UK, a Five Eyes member nation -- likewise handed over information to the UK feds in 2011.

Read more: Why you should be skeptical about a VPN's no-logs claims

It's fair to point out that some of these logging instances occurred in the context of companies helping law enforcement track down suspects who were ultimately found to be hiding behind a VPN to stalk, harass or abuse someone.

To be clear, it is entirely possible to be grateful for the arrest of guilty-as-sin criminals while ardently advocating for consumer privacy interests. My beef isn't with any VPN company helping cops catch a child abuser via usage logs; it's with any VPN company that lies to its customers about doing so. VPN policies have global consequences for users. The lie that helps law enforcement in the US catch a legitimate criminal is the same lie that helps law enforcement in China arrest a person watching footage of the 1989 Tiananmen Square protests.

Now playing: Watch this: Top 5 reasons to use a VPN

2:42

My beef is also with any government or entity that aims to outlaw digital window curtains because those curtains make it harder for cops to see potential criminals in your metaphorical living room. Or any entity, elected or otherwise, that aims to give cops a spare key to your house under the pretext of safety.

My skepticism of US VPNs isn't solely because the US government can force a VPN provider to secretly monitor a user. It's that legislation and policy priorities for a growing segment of elected officials are lurching hard toward FBI Director Christopher Wray's call for tech companies to weaken encryption.

Here's the elevator pitch from Wray this year: The government needs a special backdoor into encrypted communications so it can catch child predators and drug traffickers. The problem: There's no such thing as a backdoor into encryption without destroying encryption itself. It would be like putting a screen door on a submarine.

US Attorney General William Barr, so far publicly in lock-step with Wray on the issue, also wants law enforcement to have a backdoor into encrypted communications. His cause has likewise been championed by Republican Sen. Lindsey Graham of South Carolina.

Graham is also the sponsor of the controversial EARN-IT Act. The legislation was initially pitched as a way to hold digital platforms like Facebook accountable for child predator activity, but during its winding passage through the committee system it became a bill that would grant the Attorney General sweeping authority over tech companies like Google, Facebook and Apple. Social media platforms that failed to comply with the directives of a national council headed by the Attorney General would face millions of dollars in civil penalties. In late July, the EARN-It Act cleared its last Senate committee hurdle and has since been sitting on the chamber's calendar, awaiting a hearing by the full Senate.

Beyond the obvious threats to Fourth Amendment search and seizure protections and First Amendment free speech, one of the problems with the bill is that we've already seen what happens when a weakened security standard is created so law enforcement agencies have special privileges. In 2009, Chinese political operatives got their hands on sensitive US intelligence after a Google backdoor breach. If one person can come through the backdoor, so can others. And US tech companies' weakened secured systems would then be vulnerable to a host of actors all over the world.

The problems aren't just limited to potential constitutional violations and human error. The creation of the backdoor would likely create a cascading chain of other security flaws as engineers attempt to comply with the feds. Here's the academic take from a host of reliable authors, including security legend Bruce Schneier, who is currently a fellow at the Berkman Klein Center for Internet & Society at Harvard University:

"Exceptional access would force internet system developers to reverse forward secrecy design practices that seek to minimize the impact on user privacy when systems are breached," the authors write. "The complexity of today's internet environment, with millions of apps and globally connected services, means that new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws."

The message is clear: The current legal environment suggests that the US government is moving toward an end to encryption, and is therefore not required to protect your privacy -- at least for the foreseeable future. That means until we see the expansion and development of more decentralized and uncensorable bandwidth markets (a la what the folks at Orchid are working on) even the most promising VPN with the most watertight technology is not one I want to subscribe to if it or its parent and affiliate companies are headquartered in the US.

In my VPN tests for CNET, there are two that stand ahead of the pack: ExpressVPN, one of the fastest and most secure on the market, and SurfShark, a speedy up-and-comer with unlimited device support. Both are based in the British Virgin Islands, which is generally considered a privacy-friendly country due to its lack of surveillance-sharing agreements with others.

A final note: Just because a VPN has a jurisdiction outside of the US (and its multinational intelligence rings), it doesn't mean it is exempt from Uncle Sam's prying eyes, and it is often impossible to fully track the actual ownership of a VPN company through layers of shell companies and business filings. Beyond that difficulty, it's also pretty widely accepted that if someone really wants to find your data, they will -- whether that's some random hacker who hates your guts enough to doxx you, or a government agency looking to get your data from an overseas organization.

We'll never win the war for anonymity on the internet, but every battle for privacy is one worth fighting if it makes mass surveillance even just a little bit harder to accomplish.

Read this article:
I don't trust VPNs based in the United States. Here's why you shouldn't either - CNET