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The U.S. elections on November 3, 2020 included three states with privacy-related ballot initiatives: California, Massachusetts, and Michigan. Voters supported all three initiatives.

California California Privacy Rights Act (CPRA)

We had previously summarized this proposal to amend the California Consumer Privacy Act (CCPA) with a ballot initiative known as the California Privacy Rights Act (CPRA). Most of the changes will take effect as of January 1, 2023, but one of the immediate effects is that the initiative extends the B2B and employee exceptions through December 31, 2022.

The CPRA potentially extends the 12-month look-back period for access requests to an amount of time to be determined by new regulations, but this change would affect only information collected on or after January 1, 2022.

The CPRA adds two new consumer rights: a right to correct inaccurate personal information and a right to limit use and disclosure of sensitive personal information. In addition, California will have the nations first privacy regulatory agency, because CPRA creates and funds the new California Privacy Protection Agency.

The Do Not Sell My Personal Information website link for consumers will become Do Not Sell or Share My Personal Information and there will be a second link Limit the Use of My Sensitive Personal Information.

Although its not entirely clear, because the health research amendment to CCPA that the California legislature had passed in September appears to be largely unaffected by CPRA. We had previously summarized that amendment here. Because the amendment added sections to CCPA that are not affected by CPRA, the new sections apparently are unchanged.

Importantly, CPRA does not contain any new private right of action. It leaves unchanged the private right of action for breaches as currently provided in CCPA.

Massachusetts On-Board Diagnostics (Telematics) Data

In Massachusetts, Question 1 for voters related to owner access to motor vehicle networks and on-board diagnostics systemsso-called telematics data. Under this ballot initiative, commencing with model year 2022, any manufacturer of motor vehicles equipped with telematics systems that are sold in Massachusetts must equip the vehicles with an inter-operable, standardized and open access platform across all of the manufacturers makes and models. The new law requires that the platform be capable of securely communicating all mechanical data emanating directly from the motor vehicle via direct data connection to the platform.

The data must be directly accessible by the motor vehicle owner and, with the owners authorization, by independent repair facilities or class 1 dealers, for the time needed to repair the vehicle or for maintaining, diagnosing and repairing the vehicle.

The Attorney General is required to create an explanatory notice for prospective motor vehicle owners, which the individuals will be required to sign. The new right to repair law provides a private right of action by owners and authorized independent repair shops denied access to the data. Penalties for each denial of access are the greater of treble damages or $10,000.

Michigan Search Warrant for Electronic Data

In Michigan, Proposal 2 asked voters to weigh in on a proposed amendment to the state constitution. The Michigan constitutions Article 1 12 is similar to the Fourth Amendment to the U.S. Constitution. The approved ballot proposal revised the state constitution section to read:

Searches and Seizures

The person, houses, papers, and possessions, and electronic data and electronic communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

Readers may recall that the U.S. Supreme Court ruled that the Fourth Amendment required the police to obtain a warrant to access a suspects cell phone (Riley v California, in 2014) or to access cell phone tracking data (Carpenter v. United States, in 2018). The changes to the Michigan constitution extend to electronic data and electronic communications beyond what the U.S. Supreme Court had addressed.

Read more from the original source:
California, Massachusetts, and Michigan - 2020 Ballot Initiatives on Privacy - Data Protection Report

Tuesday is always my busy day, but because the Board of Supervisors had no meeting this week, I was able to do enjoyable things. A welcome change.

It started with an outdoor socially distanced visit with someone I love at Brentwood skilled care facility. Brentwood has gone out of its way to make limited visiting safe for everyone. It helps the residents who have been suffering by not having regular visits with family members. Meeting in a large tent outside felt like a clandestine exchange of espionage information. I brought a giant bag of leftover Halloween candy for the residents and staff to share. Better them than us.

I met a friend for lunch at From the Hearths sidewalk cafe. Black and Bleu Salad for both of us. Yum. While walking back to the car, I ran into another friend and we caught up, not having seen each other for months. He didnt even know I had a column tsk tsk.

While we were chatting, three very friendly women approached us and said, Thank you for wearing a mask. You have just won $50. They were from the United Way and are walking around Redding, Red Bluff and Chico handing out $50 gift cards to people wearing masks. Score.

I went grocery shopping and was home in time to watch the early election returns with a nice martini. Congratulations to John Leach for winning the District 5 supervisor seat. He has promised to listen to the citizens. Wont that be nice?

And now for something you will rarely read in this column. Thank you, Code Enforcement. Yep, I am thanking the people whose prime directive for the past five years has been to violate the Fourth Amendment rights of its citizens by conducting warrantless searches of their private curtilages.

Apparently someone called and complained about a property in Manton Im not sure what the issue was, but it was probably too much junk in the yard or people living in RVs, goddess forbid. When they came up the hill to serve an abatement notice to the hapless residents, a hard working local gal asked why they were always up here handing out citations, but never offering to help the economically and often physically challenged populace in our town?

She must have struck a nerve, because Officer Clint Weston offered to bring up a couple huge dumpsters, leave them at a central location, and people could clean up their places and CE would haul it away. He also offered to tow away old cars. And none of it would cost people a dime.

This is precisely the kind of thing Code Enforcement should be spending its $848,000 a year on. As of this writing there were at least nine cars ready to be towed and the dumpster for metal appeared to be almost full. Thank you, Officer Weston and everybody over at CE and Environmental Health. Maybe this is the start of a beautiful new relationship.

A little caveat about my column from last week. I had written on Thursday about the COVID-infectious person who had been in a bar for several hours. My deadline is Friday morning and I dutifully sent the column off to the editor.

I had learned about the incident at the supervisors meeting on Tuesday morning and was under the impression that the person was in the bar, which turned out to be The Roundup, the weekend prior to Tuesdays meeting, Oct. 23-25. That would have meant the person, who did not cooperate with contact tracing, had only been exposing people for a few days.

What a rude awakening Saturday morning when everyone read that the COVID Drink-along had occurred the weekend before, Oct. 16-18. Whose decision was it to withhold information about this potential super-spreader event for 10-14 days? Anyone with a basic understanding of exponential math can figure out a boatload of people were exposed because of it.

Since the infected person wasnt cooperating with contact tracing, you can be sure he wasnt telling his buddies or anyone he ran into at Walmart. And without knowing it, those people could have spread it and so on and so on.

Releasing the name of the person would violate his HIPAA rights and nobody wants that, but the name of the bar should have been well publicized immediately so other patrons could get tested and isolate themselves. Shame on you, Public Health.

The office of the County Counsel sent me the information I had requested about the almost half million dollars spent yearly on investigating welfare fraud. Social Services receives federal, state and local funding which they give to the district attorneys office to catch welfare cheats. The program is mandatory and necessary, but are we getting our moneys worth?

The total dollar amount of fraud overpayments identified in investigations in 2019 was $125,304. However, part of that total was later found not to be fraud. I couldnt figure out how much, but it appears that 33 people who were prosecuted were not disqualified from receiving payments while one person was. Some people were disqualified in administrative hearings after being investigated by the DAs office, and there is no way to know how many were disqualified by Social Services employees before they received payments. Certainly more than the DAs office found.

Even if we give them the benefit of the doubt and say they saved $125,000 by spending almost four times that amount, is that a good plan?

But Liz, says the Straw Man, most of that money comes from the state and federal government, not county coffers. Right, but its still our tax dollars. Waste is waste. This program was started during the previous DAs tenure, so maybe its time to take a look at it.

Maybe well know who will occupy the White House for the next four years by the time you read this. Patience and martinis will get us through. Ill be drinking the good stuff thanks to United Way.

Liz Merry has been half of Merry Standish Comedy for 30 years and is a former downtown Red Bluff business owner. She now has a home-based business and is locked and loaded in Manton. She can be reached atlizmerry58@gmail.com.

Read more here:
Election day in and around Red Bluff - Red Bluff Daily News

Last month, the Supreme Court heard argument in Torres v. Madrid. The case presents the question whether police carry out a seizure for Fourth Amendment purposes when they shoot a person in the back but the injured individual still manages to flee. This column will take up two of the issues that each puzzled at least one of the Justices. The first has to do with the difference between touching someone directly with ones hands, on the one hand, and using ones hands to touch another person with an inanimate object, on the other. The second is about the distinction between holding and dicta, specifically as applied to the case of California v. Hodari D. A discussion of these two cases will reveal how very flexible the Constitution can be, lending itself to very different interpretations.

In 1991, the Court decided California v. Hodari D. A minor had been running away from the police, and the latter gave chase. During the pursuit, Hodari threw down some illicit drugs that he had been carrying in his pocket. The police picked up the drugs and somehow managed to catch and apprehend Hodari as well. The question in that case was whether the police had seized Hodari when they began chasing him, before tackling him and bringing him under their control. The Courts answer was that until the officer had tackled Hodari, the former had not seized the latter for Fourth Amendment purposes. This outcome mattered to Hodari because if there was a seizure and that seizure was unreasonable (as California had conceded for purposes of that case), then the dropped drugs would be the fruit of the unreasonable seizure and therefore subject to suppression at the criminal trial. If, on the other hand, there was no seizure until after the dropping of the drugs, then police would have needed no reason for chasing Hodari, and the drugs would qualify as abandoned property, freely admissible at the criminal trial.

Hodari lost his case, and that fact may have been the only relevant feature of the outcome, from his perspective. For attorneys and their future clients, however, Hodari D. let us know that in order to qualify as a seizure under the Fourth Amendment, the police conduct must do one of two things. It must represent a show of authority to which the suspect submits or alternatively, it must consist of the officers touching the suspect or applying physical force to him, whether the touch or force does or does not successfully result in the suspects apprehension. A show of authority alone (such as by chasing a suspect down the street) thus must succeed before it matures into a seizure, while touching or applying physical force to the suspect is a seizure immediately, even if the suspect escapes the officers grasp and thus terminates the seizure. Hodari D. thus gave us a working map of when an attempt at apprehending someone is and is not a Fourth Amendment seizure.

One question that arose briefly at the oral argument in Torres was whether shooting a person in the back qualifies as a seizure even though the officers touching of or applying physical force to the suspect happened through the projectile of a bullet. In other words, if an officers grabbing a person with his hand counts as seizing him (notwithstanding the persons slipping through the officers grasp), then does that mean that causing an inanimate object (like a bullet) to touch the person also qualifies as a seizure? Though arrests during the colonial period (aka framing and ratification) generally involved no guns, it seems sensible to treat touching (or applying physical force) with an officers hands as the equivalent of touching (or applying physical force) with a projectile or some other object. Imagine if all that an officer had to do to avoid triggering the Fourth Amendments requirements was to wear a pair of gloves or grab a suspect who was wearing a sweater or a coat. Using inanimate objects to do things like sweep the floor, drive a car, beat people up, or attempt to kill those people seems logically indistinguishable from doing those things with ones own hands. Indeed, the very purpose of these items is to make it easier for us to do things we would otherwise have had to do with our hands. Sweeping the floor is far easier with a broom and dustpan than it would be with ones hands alone, and penetrating a suspects back is likewise a simpler matter with a gun than it would otherwise be. I think most people would find bizarre any rule distinguishing between touching with hands and touching with such items as bullets, for purposes of the Fourth Amendments regulation of what police may do to suspects.

The Justices who spoke during argument seemed to want to keep faith with Justice Antonin Scalias opinion for the Court in Hodari D. For the petitioner Roxanne Torres, that would appear to mean that shooting a suspect in the back (in a hail of 13 bullets, 11 of which missed her) does qualify as a seizure and therefore fall within the Fourth Amendments requirements. The Court said in Hodari D. that touching or applying physical force to the suspect is a seizure, even if the touching or physical force fails to lead to successful apprehension. The next step would be a remand in which the lower court would address the question whether the seizure in question was or was not reasonable.

But at least a few of the Justices seemed to think that the holding of Hodari D. was far narrower. Justice Clarence Thomas, for instance, at one point seemed perplexed that a case ruling against the respondent could possibly support the Torres petitioner. All we learned from Hodari D., in other words, was that the police officer there did not seize the suspect by chasing after him. That alone was the holding. The only side that could benefit from the case would accordingly be the government, which could say in future cases that other officers pursuing a suspect would also not qualify as seizing him for Fourth Amendment purposes. Why was the respondent citing it? Though other Justices were somewhat more circumspect in their phrasing, several seemed to agree with Justice Thomas that the holding in Hodari D. had nothing affirmative to say about when a police action did qualify as a seizure.

I found this conception of holding and dicta peculiar. Under it, if Justice Scalia had truly wanted to hew to the Article III case or controversy requirement, in letter as well as in spirit, he would have written the following opinion:

The respondent asserts that police seized him. California (unnecessarily, see Proverbs) concedes that it acted unreasonably, thus leaving the seizure/not-a-seizure issue the only one before us. The officer chased after Hodari but failed to catch him until after Hodari had discarded his drugs on the street. Chasing is not a seizure, so the State of California wins.

Opinions would be much shorter. One could read them in a fraction of the time it ordinarily takes to absorb judicial writings.

I and most attorneys, I suspect, do not think of the holding of a case in that limited way. The holding is both the outcome in the case (Hodari lost) and an explanation of what led the Justices to reach that conclusion. In Hodari D., that explanation would include the two types of seizure (touching or physical force and show of authority) and what happens when an officer unsuccessfully attempts to carry out one of the two. What led to Hodaris loss, then, was not merely the fact that chasing is not a seizure but also the fact that the officer there was attempting a seizure through a show of authority rather than by physically touching the suspect and attempting to force him into custody. That broader conception of the holding clarifies its utility for Roxanne Torres: in her case, the officers did touch her/apply force to her by shooting her in the back. Despite her escape, we know from Hodari D. that the officers seized Torres for the period during which their bullets were hitting her in the back. Hodari lost for the same reason that Torres should win: the officer never touched Hodari but the officers did touch Torres. The Courts emphasis on that fact has plain implications for other cases like Torres.

For an illustration, consider the following hypothetical case. A state passes a law requiring abortion patients to receive an informed consent session (telling them about fetal pain and a debunked link between abortion and cancer) twenty-four hours before having the procedure. Because of the global pandemic, women complain that having to enter a clinic with lots of other people on two separate occasions doubles their risk of contracting the virus. Assume that the Supreme Court upholds the requirement 6-3, explaining that lots of cases in the past have upheld waiting periods and that we are not in the midst of a natural disaster.

Now imagine that another case arises in a state high court. The appellants challenge a law requiring an informed consent session forty-eight hours before an abortion. Could the state high court hold that the law violates the Due Process Clause of the Fourteenth Amendment? It could perhaps do so by distinguishing twenty-four from forty-eight hours, but it would help a lot if in between the two cases, a relevant authority had declared COVID-19 a natural disaster. The relevant distinction between the two cases, one that actually calls upon the reasoning of the earlier decision, is that now the appellant would be dealing with a natural disaster and might accordingly get to rely on that fact in a way that the last challenger could not. An opinion, in contrasting the facts before the Court with the facts that would change everything, offers reasoning in defense of the outcome. That reasoning is as much a part of the holding as the petitioners loss or the respondents gain.

Sometimes it truly is difficult to know whether to consider some feature of a case to be holding or dicta. If we have a plurality and several overlapping concurrences, it may be that the only real holding is that the petitioner or respondent won given the facts before the Court. Such rulings are virtually useless to lower courts because facts are rarely identical to those in an earlier case. The Supreme Court would likely avoid granting certiorari if it anticipated an outcome of this sort because certiorari is a vehicle for the Court to help guide the lower courts. A holding that contains nothing but the naked outcome of the case provides little guidance and few reasons to prefer one case over another in deciding when to grant certiorari.

The understanding of a holding that several Justices apparently have asks us to ignore the part of a majority opinion that provides a justification and explanation for the outcome, an account that includes distinctions between the facts that came out one way and the facts that would have yielded a different result. Torres is one of those cases in which the routes to one of the outcomes (in which the government wins) are both so unconvincing that it would hardly seem necessary to refute them. Of course an officer has touched a suspect at least as much by shooting her in the back as he would have done by momentarily grabbing her arm. And obviously the Hodari D. case holds that the officers failure to touch Hodari D. was the reason that the officer there did not seize the suspect. I am hopeful that despite everything, a majority of the Court will reach the right result in Torres and will offer an explanation for that result, an explanation that will someday qualify as part of the holding.

Read more:
What Is a Seizure, and What Is a Holding? The Court Hears Argument in Torres v. Madrid - Justia Verdict

In 2019, agents of the federal and state governments persuaded judges to issue 99% of all requested intercepts. An intercept is any type of government surveillance telephone, text message, email, even in-person.

These are intercepts that theoretically are based on probable cause of crime, as is required by the Fourth Amendment to the Constitution.

The 2019 numbers which the government released as we were all watching the end of the presidential election campaign are staggering.

The feds, and local and state police in America engaged in 27,431,687 intercepts on 777,840 people. They arrested 17,101 people from among those intercepted and obtained convictions on the basis of evidence obtained via the intercepts on 5,304.

That is a conviction rate of 4% of all people spied upon by law enforcement in the United States.

Here is the backstory:

Readers of this column are familiar withe use by federal agents of the Foreign Intelligence Surveillance Act (FISA) to obtain intercepts using a standard of proof considerably lesser than probable cause of crime.

That came about because Congress basically has no respect for the Constitution and authorized the FISA Court to issue intercept warrants if federal agents can identify an American or a foreign person in America who has spoken to a foreign person in another country.

Call your cousin in Florence, or a bookseller in Edinburgh, or an art dealer in Brussels and, under FISA, the feds can get a warrant from the FISA Court to monitor your future calls and texts and emails.

This FISA system is profoundly unconstitutional.

The Fourth Amendment expressly requires that the government state and federal can only lawfully engage in searches and seizures pursuant to warrants issued by a judge based upon a showing under oath of probable cause of crime. The Supreme Court has ruled consistently that intercepts and surveillances constitute searches and seizures.

The government searches a database of emails, texts or recorded phone calls and seizes the data it wants. Thus, when the feds have targeted someone for prosecution and lack probable cause of crime about that person, they resort to FISA.

This is not only unlawful and unconstitutional, but also it is corrupting, as it permits criminal investigators to cut constitutional corners by obtaining evidence of crimes outside the scope of the Fourth Amendment.

The use of the Fourth Amendment is the only lawful means of engaging in surveillance sufficient to introduce the fruits of the surveillance at a criminal trial.

If the feds happen upon evidence of a crime from their FISA-authorized intercepts, they then need to engage in deceptive acts of parallel construction.

That connotes the false creation of an ostensibly lawful intercept in order to claim that they obtained lawfully what they already have obtained unlawfully.

Law enforcement personnel then fake the true means they used to acquire evidence even duping the prosecutors for whom they work so the evidence will appear to have been obtained lawfully and thus can be used at trial.

At its essence, parallel construction is a deception on the court.

If the deception is perpetrated under oath, it is perjury a felony.

This corruption of the Constitution by those in whose hands we have reposed it for safekeeping happens every day in America.

The FISA-induced corruption has regrettably bled into the culture of non-FISA law enforcement, and even into the judiciary. The statistics I cited above are not from FISA those numbers are secret.

Rather, the statistics reflect the governments voracious appetite for spying that now pervades non-FISA law enforcement. This is so because judges accept uncritically the applications made before them for intercept or surveillance warrants.

Thus, even though the Fourth Amendment permits judges to issue warrants only upon the probable likelihood of evidence of a crime in the place to be searched or the person or thing to be seized, the attitude of what constitutes probable cause has been attenuated by both the law enforcement personnel who seek warrants and the judges who hear the applications.

We know this because we have not seen a number like 99% of all warrant applications every one supposedly based on probable cause of crime granted.

Nor have we seen only 4% of those intercepts resulting in convictions.

The rational conclusion is that the governments appetite for surveillance remains voracious, and judges whose affirmative duty it is to uphold the Constitution as against the other two branches of government have done very little to abate this.

So, what becomes of the remaining 96% of those on whom the government spied?

That depends on whether the government charges anyone.

If a person is charged and acquitted, and law enforcement unlawfully obtained evidence against that person, his remedy is either persuading the court to suppress the evidence thus resulting in the acquittal, or suing the law enforcement agents who unlawfully spied on him.

Yet, under current Supreme Court decisions about who can sue the government, if the government has spied on you and not charged you and not told you, you have no cause of action against the law enforcement agents who did this.

Stated differently, in 2019, at least 760,739 people in America were spied upon pursuant to judicial orders allegedly based upon probable cause of crime and were neither charged nor informed of the spying.

My Fox colleagues often deride my attacks on those who fail to safeguard our privacy because they argue, we have no privacy.

Yet, as Justice Louis Brandeis wrote, the most comprehensive of rights is the right to be let alone.

If we forget this, my colleagues will have the last laugh.

If we expose its violation, we might know the joys of unmonitored personal fulfillment.

Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He sat on the bench from 1987 to 1995. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year. He is Fox News senior judicial analyst on the Fox News Channel and the Fox Business Network. He is the host of FreedomWatch on the Fox Business Network. Napolitano also lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in The New York Times, The Wall Street Journal, The Los Angeles Times, and numerous other publications. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitanos Reports More Here.

Creators Syndicate Inc.

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Govt Addicted to Unconstitutional Spying | News Talk WBAP-AM - WBAP News/Talk

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

1. Enhanced Protection of Patent Rights

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

(1) Punitive Damages and Increased Statutory Damage

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

If it is difficult to determine the losses of the patentee, benefits of the infringer, or royalties of the patent, the people's court may, on the basis of the factors such as the type of patent right, nature of the infringement, and seriousness of the case, determine the amount of compensation within the range from RMB30,000 to RMB5,000,000 (US$4,500 to US$750,000). This is referred to as statutory damage and its lower and upper limits are respectively raised to 3 times and 5 times of the current ones.

(2) Reversed Burden of Proof

One of the biggest difficulties faced by a patent right holder in a patent infringement law suit in China is the lack of discovery. It is often the case that infringement is found but there is no good evidence to calculate damages as the evidence is in the possession of the defendant.

To deal with this problem, Article 71 of the fourth amendment of the patent law provides where the right holder has tried his best to provide evidence but the account book and materials related to the infringement are mainly in the possession of the infringer, in order to determine the amount of damages, the peoples court may order the infringer to provide the account book and materials related to the infringement acts.

Where the infringer fails to provide the account book or materials or provide fake account book or materials, the peoples court may determine the amount of damages based on the claim made and the evidence provided by the right holder. It follows that the plaintiff may want to claim high when launching an infringement law suit. However, one factor that needs to be considered is that the court fees are related to the amount at stake. Even if China does not have a loserpay system, i.e. the losing party does not need to cover the cost of the winning party in a law suit, overclaiming increases the risk of having to pay higher court fees if the plaintiff does not win the case.

The punitive damages and the increased statutory damages, together with the reversed burden of proof for calculating damages are likely to significantly increase the amount of damages awarded in future patent infringement cases in China, which will create greater 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 amendment provides that when handling a patent passingoff case, a patent enforcement authority can confiscate the illegal gains of the party who passes off a patent and, in addition, impose a fine of not more than five times the illegal gain, which is increased from the current limit of four times of the illegal gain. In case there 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 up to RMB250,000 (US$37,500). It is to be noted that the fine is a type of punishment on the party who passes off a patent but the patent right holder will not gain any financial benefit from the fine. Of course, in addition to confiscation and fine, the party who 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 enforcement authority investigates and handles the suspected passingoff of a patent, it may, based on evidence obtained, (1) inquire the parties concerned and investigate the circumstances related to the suspected illegal act; (2) conduct onsite inspection of the places where the suspected illegal act is committed; (3) review and duplicate the relevant contracts, invoices, account books and other related materials; (4) inspect the products related to the suspected illegal act; and (5) seal or confiscate the products which pass off the patent.

In China, a patent right holder can enforce a patent right through judicial route, i.e. peoples court or administrative route, e.g. local IP offices. However, local IP offices power to review and duplicate the relevant contracts, invoices, account books and other related materials and to seal or confiscate the products which pass off the patent, as mentioned above, is limited to patent passingoff cases only. The fourth amendment of the patent law still does not give local IP offices such power in handling patent infringement cases.

(4) Extended Time limit for Initiating Litigation

According to Article 74 of the fourth amendment of the patent law, the time limit for taking legal action against patent right infringement was extended from two years to three years, commencing from the date when the patentee or interested party knows or should have known of the infringing activity and the infringer. Similarly, if a patentee wants to sue another party for compensation during the period from the publication of the invention patent application to the grant of the patent right, the time limit for taking legal action is also extended from two years to three years, commencing from the date when the patentee knows or should have known of the use of the patent by that other party. However, the time limit shall commence from the date when the patent right is granted, if the patentee knows or should have known of the use before the patent right is granted.

2. A More Friendly Design Practice

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

According to Article 42 of the fourth amendment of the patent law, the term of a design patent shall be 15 years, extended from 10 years as prescribed in the current patent law. It is believed that this change is part of Chinas effort to join the Hague Agreement.

Article 2 of the fourth amendment redefines design as any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of the whole or a part of a product, which creates an aesthetic feeling and is fit for industrial application. This makes it possible to protect a portion of a product, often referred to as partial design. Under the current law, a design patent can only protects a complete product but not a portion of a product which cannot be separated or cannot be sold and used independently. Allowance of partial design makes design practice in China more similar to that in many other jurisdictions and offers broader protection of design patents. Without having to limit their design patent to specific complete products even though the design points are only related to certain part of such products, design patent right holders will be in a better position to protect themselves from infringers who may be able to avoid the risk of infringement by only copying their design points and using them in a different shaped product.

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

Article 29 of the fourth amendment of the patent law includes domestic priority for design applications, which is not available under the current patent law. Specifically, if within 6 months from the date an applicant first files an application for a design patent in China, he files another design application in China for the same subject matter, the applicant may enjoy the right of priority. Under the current domestic priority practice for invention and utility model applications, when domestic priority is claimed, the first filed Chinese application will be deemed to be withdrawn. Therefore, it is not possible to keep both applications. It is reasonable to believe that this also applies to design applications.

3. Drug Patent Related Provisions

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

(1) Patent Term Extension

Article 42 of the fourth amendment provides that in order to compensate for the time spent in the review and marketing approval of new drugs, at the request of the patentee, CNIPA (China National Intellectual Property Administration) may grant compensation for the term of the invention patent related to the new drug which has been approved for marketing in China. The compensation period shall not exceed five years, and the total effective period of patent right after the new drug is approved for marketing shall not exceed 14 years.

It is to be noted that Bolar exemption is available under the current patent law, i.e. use of a drug patent for the purpose of application for drug approval is not considered a patent infringing activity, but extension of patent term is not available. The inclusion of patent term extension in the fourth amendment of the patent law better balances the interest of innovative drug companies and the generic companies. There are no detailed provisions available yet regarding how the extension will be calculated. However, it can be expected that this new provision encourages innovative drug companies, especially foreign drug originators to bring their new drugs to the Chinese market as early as possible and hence make new drugs more accessible to the Chinese people.

(2) Patent Linkage System

Article 76 of the fourth amendment of the patent law provides that in the process of review and marketing approval of a drug, if a dispute arises between the applicant for the marketing approval of the drug and the relevant patentee or interested party due to the patent right related to the drug applying for registration, the relevant party may bring a suit in the peoples court and request a judgment be made on whether the related technical solution of the drug applying for registration falls within the scope of protection of others drug patent. The drug regulatory department of the State Council may, within the prescribed time limit, make a decision on whether to suspend the marketing approval of the relevant drug based on the effective judgment of the people's court.

The applicant for marketing approval of a drug and the relevant patentee or interested party may also request an administrative ruling from CNIPA for the dispute over the patent right related to the drug applying for registration.

Article 76 further provides that the drug regulatory department of the State Council, in conjunction with CNIPA, shall formulate specific measures for the connection between the marketing approval of drugs and the resolution of patent disputes in the stage of application for marketing approval of drugs, which shall be implemented after the approval of the State Council.

The newly added article introduces the socalled "patent linkage system" into the patent law, which provides an early resolution mechanism for drug patent disputes, aiming to resolve potential patent disputes before relevant drugs are marketed. However, by the completion of this article, detailed rules in this area still need to be formulated, such as availability of experimental data protection period for drugs, and the establishment of Chinas Patent Information Registration Platform for Approved Drugs, equivalent to the corresponding content in Approved Drug Products with Therapeutic Equivalence Evaluations in the US, commonly known as the Orange Book. Other drug related measures may also need to be updated to reflect the changes in this regard, such as an updated application process for drug approval, or a revised Catalog of Approved Drugs.

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

4. Open License System

Articles 50 to 52 of the fourth amendment of the patent law provide an Open License system. Specifically, a patentee may express in writing to CNIPA its willingness to license their patents to anyone and specify relevant royalties and method of payment. CNIPA will announce the patentees statement and offer the open license. Patent right evaluation report should be provided with the offer of an open license for utility model or design patent. If a patentee withdraws its offer of open license, it must do so in writing and CNIPA will announce the withdrawal statement. In this case, any previously granted open license shall not be affected.

According to Article 51, anyone that is willing to exploit the patent which is open licensed gets the license to exploit the patent after it informs the patentee in writing, and pay the license fee according to the open license announcement. In other words, anyone that complies with the above provision automatically gets a license. In addition, the same article specifies that the patentee that offers the open license and potential licensees can still negotiate on license fees. However, the patentee that offers the open license may only grant ordinary licenses and shall not grant 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 or launch a law suit in peoples court.

Interestingly, in order to encourage patentees to offer open licenses, the fourth amendment of the patent law provides that during the implementation period of the open license, the annuities paid by the patentee shall be reduced or exempted.

5. Other Important Changes

(1) Patent Term Adjustment

Patent term adjustment is made available in Article 42 of the fourth amendment of the patent law. It is believed that this change was made in line with the ChinaUS phase 1 trade agreement. Specifically, where an invention patent right was granted after four years from the filing date of the invention patent application and after three years from the date of the substantive examination request, CNIPA shall, at the request of the patentee, provide compensation for the term of the patent with respect to the unreasonable delay in the examination stage of the invention patent. Not detailed calculation method is available yet.

(2) A New Grace Period Provision

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

(3) Patent Right Evaluation Report

Under the current patent law, if a dispute over patent infringement involves a utility model patent or a design patent, the people's court or the administration office may require the patentee or the interested parties to present a patent right evaluation 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 patent infringement dispute. Currently only patentees or the licensees that have the right to launch law suits have the right to request patent right evaluation reports. In the fourth amendment of the patent law, it is provided that relevant parties from both sides of the law suit may request the patent right evaluation report produced by CNIPA. This means that not only the patentee can request the CNIPA to produce the patent right evaluation report but the defendant is also able to do so. It provides a new vehicle for alleged infringers to defend themselves.

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

(4) Extended Deadline to Submit Priority Documents

According to Article 30 of the fourth amendment, an applicant who claims priority from an invention or a utility model patent application shall submit a written declaration at the time of filing an application and submit copies of the patent application documents filed for the first time, within 16 months from the date on which the invention or utility model patent application was filed for the first time. In other words, for invention or utility model applications, the deadline for submitting priority documents is extended from 3 months from claiming priority to 16 months from the priority date.

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

(5) AntiMonopoly Provision

The fourth amendment of the patent law includes a new Article 20 which is a very broad antimonopoly provision. Specifically, it provides that the application for and the use of patent rights should follow the principle of good faith. Patent right should not be abused to damage public interest and others legitimate rights. Abuse of patent rights to exclude or restrict competition, which constitutes monopolistic behavior, shall be dealt with in accordance with the AntiMonopoly Law of China. Currently, there are several laws, regulations or judicial interpretations in place to address the abuse of intellectual property right. However, it will be interesting to see how this provision is applied in litigation in the future.

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Review of the 4th Amendment of China's Patent Law - Lexology