Monthly Archives: March 2021

The Fourth Amendment stands for the principle that the government generally may not search its people or seize their belongings without appropriate process and oversight. Today, we are at a jurisprudential inflection point as courts grapple with when and how the Fourth Amendment should apply to the data generated by technologies like cell phones, smart cars, and wearable devices. These technologies which we rely on for enhanced communication, transportation, and entertainment create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more. The resulting trove of information is immensely valuable to law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.

This paper describes how the U.S. Supreme Courts 2018 decision inCarpenter v. United Stateshas the potential to usher in a new era of Fourth Amendment law. InCarpenter, the Court considered how the Fourth Amendment applies to location data generated when cell phones connect to nearby cell towers. The Court ultimately held that when the government demanded seven days of location information from defendant Timothy Carpenters cell phone provider without a warrant, it violated the Fourth Amendment. The decision sits at the intersection of two lines of cases: those that examine location tracking technologies, like beepers or the Global Positioning System (GPS), and those that discuss what expectation of privacy is reasonable for information disclosed to third parties, like banks or phone companies. In reaching its conclusion that a warrant was required, the Court upended existing precedent, ruling for the first time that location information maintained by a third party was protected by the Fourth Amendment.

In exploring the Courts decision inCarpenterand its application to data from a variety of technologies such as GPS, automated license plate readers (ALPRs), and wearables this paper argues that it is incumbent on courts to preserve the balance of power between the people and the government as enshrined in the Fourth Amendment, which was intended to place obstacles in the way of a too permeating police surveillance. Moreover, in determining the scope of the Constitutions protections for data generated by digital technologies, courts should weigh the five factors considered inCarpenter: the intimacy and comprehensiveness of the data, the expense of obtaining it, the retrospective window that it offers to law enforcement, and whether it was truly shared voluntarily with a third party. Section I is an overview of Fourth Amendment jurisprudence. Section II discusses theCarpenterdecision and its takeaways. Section III appliesCarpenterto various surveillance technologies and looks ahead at how Fourth Amendment jurisprudence might continue to develop in the digital age.

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The Fourth Amendment in the Digital Age - brennancenter.org

Keep out of a womans right

I read the 66-page Roe V. Wade decision for the first time a few days ago and I have to admit it is a travesty. The Supreme Court had legal precedent to issue a definitive ruling, which would have nullified all the abortion bills winding their way through the Wyoming Legislature. But in true sausage making tradition, the nine male justices opted for Solomons Bargain, where they cut the Constitution in half and this decision has divided America ever since.

After mansplaining for 41 pages, the Justices chose a convoluted solution instead relying on the plain language of the Fourth Amendment. These diviners of our Constitution threw out the opportunity to set a clear definition on what is a private decision and instead opened Pandoras box with their misguided interpretation. The Founders would be horrified to find that the State had a compelling interest in that personal decision.

On Page 41 of the Decision, the nine, carried through with Solomons threat by collectively dividing the Constitution in half by chiseling the words: With this we do not agree. Had these men removed the do not from the previous sentence then the Constitution would be intact, and Roe would not have become the disaster we have come to know.

This punch line of the previous 41 pages was this monumental sentence:

On the basis of elements such as these, appellant and some amici argue that the womans right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.

Had these nine men agreed with the legitimate evidence that resulted in the sentence above, by using the words With this we agree, the abortion discussion would have been castrated in America. Instead, this decision has birthed a group that lives and breathes in the sanctity of the Second Amendment, while actively destroying the Fourth Amendment. Hypocrisy.

Americans that believe in America should fight for the entire Constitution and not just the part that suits them at the moment. It is clear that your neighbors and the State have no right to ask or interfere in ones pregnancy, just as the Fourth Amendment intended.

Greg Hunter

Laramie

Abortion interference in Wyoming

Over 30 years ago, I made a personal and public commitment to support access to abortion; it is unwavering. This is an action and decision of personal autonomy for the pregnant person supported by information via their medical practitioner. The decision is serious, worthy of regard and reason, without restriction to lawful, optimal medical procedures or access.

SF133, Prohibiting abortifacients and chemical abortions or HB134, Human heartbeat protection act, seek unfounded intrusion on inherent pregnancy risks within which time sensitive decisions must be made for the pregnant person. HB134 does nothing to protect the heartbeat of the pregnant person, why are heartbeats in competition? Both bills dismiss valid decisions for pregnancy termination. Why are Wyoming State legislators applying their will to force birthing?

Self-agency and communal regard is completely absent from the legislation; it ignores intricacies and considerations best met by the pregnant person. I urge defeat of SF133 and HB134 immediately.

Debra East

Lander

Electric cars? Not viable. Not at this point in time

The current administration in Washington, D.C. is informing us that we must switch to electric vehicles by 2035. Just stating this will not make it so. The reason why we have wind turbines is that the government provides substantial subsidies that makes them profitable for the companies and the politicians who vote in these subsidies.

Electric vehicles are just not ready for public consumption. While lithium-ion batteries are cutting-edge technology for electric vehicles, a lithium-ion battery, at most, can store about 0.6 kWh per pound of battery.

In comparison, gasoline contains 6 kWh per pound of gasoline (or 36 kWh/gallon). A Tesla Model 3 has a standard battery pack capable of storing 50 kWh of energy and an average compact car with a 10-gallon tank is capable of storing 360 kWh. A gas car can be refueled in minutes and can travel almost twice as far as an electric that will take over night to recharge.

With gas prices going up, the electric has a small edge in fueling expense. Electric vehicles usually come with a standard 120v (Level 1) charger and this is fine to get you started, but if fully discharged it can take 24 hours to recharge. 240v (Level 2) chargers can recharge the same car in only seven hours but you just cannot plug these into a standard outlet.

A 40 amp Level 2 charger will have to be installed by an electrician and that may be a problem. Most houses in the U.S. have only 100 or 200 amp service and unlike other appliances in your home, when this charger is operating it will be drawing a continuous 32 amps and this is only for one car.

If every house on your block buys an electric car, the lines to and the transformer feeding your homes must be upgraded.

There are also several issues dealing with cold weather.

We will need a lot more power, but as we have seen wind turbines and solar panels are not dependable. What do you do when the power goes out and you have an emergency?

Derek Mancinho

Laramie

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March 21: Letters to the editor | Opinion | wyomingnews.com - Wyoming Tribune

Brackney said Woods re-engagement of Gilmore after apparently turning to leave, and not explaining to Gilmore why he wanted to see a license, made the incident that followed a violation of department policies.

Wood immediately re-engaged. Wood failed to articulate or justify his reason to reengage and reacted solely upon being challenged, Brackney said.

Gilmore, through his attorney Jeff Fogel, filed complaints with police accusing Wood of bias-based policing and violations of the Fourth Amendment for detaining, handcuffing and searching him and using excessive force.

Police ruled the bias charge unfounded because there were no racial slurs used or race-based reason for Wood to talk with Gilmore

Brackney said the internal affairs investigation found that Woods force in the takedown was not excessive because his seeking a drivers license for someone who he had seen driving was legitimate.

Wood articulated in his reports, although he did not articulate it to Mr. Gilmore, that he observed Mr. Gilmore driving, Brackney said. A license is required to drive a vehicle.

In a Feb. 23 letter to police, Fogel disagreed.

Race need not be the sole basis for detention or interdiction to violate the Fourteenth Amendments equal protection clause, he wrote. One would need to look at Officer Woods history with the department and any other evidence that may touch on his treatment of Black people. You did no investigation of this question and offer no reason why Officer Wood acted the way he did.

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Officers who police say violated rights and policies are off the force - The Daily Progress

When Attorney General Merrick Garland was asked at his confirmation hearings earlier this month what his priorities would be if confirmed, he responded immediately that it would be a vigorous pursuit of domestic terrorism. He did not say he would lead vigorous prosecutions, just vigorous pursuits.

This is dangerous business for the Department of Justice because it transforms its role from prosecuting crimes after they happen to predicting who would commit crimes that never happen.

How could the feds predict crimes? They would attempt to do so by a serious uptick in domestic surveillance of broad categories of people based on political and ideological views. The government loves to cast out fishing nets so to speak and then intimidate or prosecute whomever they bring in.

The National Security Agency Americas 60,000-person strong domestic spying apparatus already captures all data transmitted on fiber optic cable into, out of, and within the U.S.; thats every email, text and phone call. But they dont admit to this. When the FBI desperately sought to gain entry to the cellphones of two deceased mass murderers in San Bernardino, California, a few years ago, the NSA would not help them because doing so would acknowledge the NSAs mass warrantless spying.

Stymied by their own colleagues refusal to admit their unconstitutional behavior, but emboldened that the NSA could get away with this, federal agents either would break the law themselves by engaging in warrantless surveillance or obtain warrants from the Foreign Intelligence Surveillance Act court by claiming foreign terrorism as a pretext for domestic law enforcement surveillance.

Under the unconstitutional standards employed by the FISA court, if the feds present probable cause of an Americans communication with a foreign person, the FISA court would issue a search warrant for surveillance of all communications of the American.

This is unconstitutional because the standard for obtaining search warrants from a judge is articulated in the Fourth Amendment, which neither the Congress nor the courts can change. That standard is probable cause of crime is it more likely than not that the place to be searched contains evidence of crimes not probable cause of communication with a foreigner.

The former is a high standard intended to compel the courts, before issuing search warrants, to take account of the natural right to privacy, prevent government fishing expeditions and force the government to focus its law enforcement efforts on real, not imagined, crimes.

The FISA standard which morphed by a series of secret judicial opinions from probable cause of being a foreign agent to probable cause of communicating with a foreign agent to probable cause of communicating with a foreign person is far easier for federal agents to demonstrate than is probable cause of crime. It means that a call to my cousins in Florence is a sufficient basis for the feds to get a search warrant to legally surveil all of my communications telephone, texting and emails.

FBI and other federal agents know this. They know how easy it is to get a warrant from the FISA court. The most recent statistics revealed that it granted 99.96% of all surveillance applications.

When FBI agents go to the FISA court with probable cause of communication with a foreign person, but they are really looking for their targets domestic criminal communications, they have engaged in an act of corruption, deceived the court and cut holes in the Constitution they have sworn to uphold.

Once they have all of a persons communications, their plan is to find something that would constitute probable cause of crime or enable them to use fear of exposure to induce the person to work for them undercover.

If your neighbor tells you on the phone how happy he is in his anti-government group, and then someone in the group trespasses on government property and is arrested, expect a knock on your door from the feds who will demand to know what you knew and when you knew it. If the trespass is a felony, they will claim that they can prosecute you for your silence. This, too, is unconstitutional. Silence is protected by the First Amendment.

This is the danger of the Garland devotion to predicting who would commit crime; and it will get worse. Expect the next legislative step to be proposals that impose the legal obligation to report suspicious activities and the failure to do would be a crime. This would turn the U.S. into East Germany where thousands were prosecuted for failure to report their neighbors, friends and family; and thousands more suffered from prosecutions based on false reports.

The Fourth Amendment was written to prevent this. Under the Constitution, the government may not seek punishment for silence, surveil for beliefs or charge for crimes not committed. But if a wired undercover agent can get someone the government fears to inculpate himself with his words and then persuade that person to take a small step in furtherance of those words even if no actual crime is committed this is enough to charge conspiracy; the prosecutors favorite crime because it is the easiest to prove.

In the years following 9/11, hundreds of folks in America were set up by the feds and prosecuted and convicted for crimes that they never committed, but which they merely agreed to commit when persuaded by an undercover agent.

The government loves to give the impression that it has caught bad guys before they struck, thereby keeping us safe. Dont believe it. The governments first task is to keep us free. But when it violates the Constitution, it keeps us neither safe nor free. Who will keep us safe from the government?

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Napolitano: The coming war on privacy - Daily Herald

As debates about policing pervade the public conversation, Professor Rachel Harmon of the University of Virginia School of Law has written the first casebook to look at the laws that govern police conduct in the United States.

The Law of the Police, published by Wolters Kluwer and available now, takes on the question of how the law shapes police-citizen encounters and how the law might be leveraged to make policing serve the public better.

Harmon, a former federal prosecutor who directs the Law Schools Center for Criminal Justice, has taught a course on the laws governing police for 15 years. She came to UVA Law in 2006 after spending eight years as a federal prosecutor in the U.S. Department of Justices Civil Rights Division.

Throughout her time in academia, she has wrestled with what role, if any, policing should have in peoples lives, and how best to prevent misconduct.

I came to the Law School from practice, where I spent years prosecuting civil rights cases, including against police officers, she said. Over time, I got frustrated with criminal prosecution as a response to police misconduct. Prosecuting illegal police violence can be important, but I knew there had to be better ways to prevent problems in policing.

Among her goals for the book, she said, was to look at how different laws and legal rules make policing more or less harmful.

The book is a reaction to the traditional approach to policing the police, which is rights-focused. For example, a common police practice she considers problematic is selectively asking drivers, based on a gut feeling, to open their trunks during a traffic stop with all of the officers conscious and unconscious biases in tow.

Lawyers have typically looked at such problems and argued that they violate Fourth Amendment doctrine or, if they dont, that the doctrine should be changed, she said. I see things differently.

In the evolution of her thoughts, Harmon first looked at how existing rights and remedies might be applied to curb policing that works against the public interest.

I spent my first couple of years as an academic looking at legal remedies to see whether they could be used to prevent problems in policing and tossing them over my shoulder, Harmon said. So civil rights damages actions, is that going to work? No, thats not going to work a lot of the time. Justice Department investigations of police departments, is that going to work? No, that wont work well enough either.

She then suggested enhancements to these existing tools, before going another way.

I wrote a couple of articles trying to improve rights and remedies before I started to write about how to think more broadly about police misconduct as a regulatory problem. The question is not only how to remedy police misconduct, but how to use law to get the public safety we want, both through policing and through other means.

Focusing on that question led Harmon to study the harms of policing and how the law overlooks them or contributes to them.

Moreover, studying the vast array of legal rules that shape policing and police departments led Harmon to realize how little of it lawyers and law students may know, she said.

Hopefully, the book can be a resource, not just for law students, but for academics, lawyers, police chiefs, journalists, activists, judges or just about anyone interested in how the law actually governs policing and how it might do so differently, whether thats reforming police departments or turning public safety over to nonpolice actors, she said.

She noted that the book is different than a criminal procedure textbook, which specifically prepares lawyers for the concepts they will need to know as future prosecutors or defenders. Her book is organized by police practices, such as stopping traffic, using force, maintaining order, and policing resistance and protests, rather than legal categories dictated by Fourth and Fifth Amendment law. The book covers departmental policies and local and state law, as well as federal statutes and cases. It also addresses topics law students rarely study and on which there are few resources for lawyers and commentators, such as asset forfeiture, protest policing, video recording the police, and criminal investigations and prosecutions of police officers.

Even so, that hasnt stopped some professors who have given her book a test run from using it in their criminal procedure courses. Harmon said that the book was not conceived with that purpose in mind, but she has grown more comfortable with the idea that it can be used to teach an alternative version of criminal procedure, one in which the police are front and center.

Harmon is a member of the American Law Institute and serves as an associate reporter for ALIs project on Principles of the Law of Policing. She advises nonprofits and government actors on issues of policing and the law, and served as a policing expert for the independent review of the white supremacist events of Aug. 11-12, 2017, in Charlottesville, Virginia.

In December she co-authored a report, Policing Priorities for the New Administration, advocating for a stronger regulatory approach. The report, in collaboration with Barry Friedman and the Policing Project at the New York University School of Law, urged the White House to appoint a policing czar and require that all of the more than 80 federal law enforcement agencies meet basic standards for transparency, among other clear and actionable measures.

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Harmon's New Casebook Is First to Look at Law of the Police - UVA Law

Reader submissions, Special to The Desert Sun Published 10:53 a.m. PT March 21, 2021

A screenshot shows an animal rights activist attempting to stop a member of the S at Rancho Mirage from shooting birds on March 4.(Photo: video courtesy of Bettina Rosmarino)

Re: "Rancho Mirage bird shoot canceled," Page A1, March 20.

How could anyone with a soul and a heart kill an innocent bird or any animal? These barbarians forget that they are Gods creatures and they will not be forgiven when they die and try to get into heaven.

Killing innocents who have done nothing wrong to be shot out of the sky to suffer a very cruel death? It is likely they will be going where it is very hot for eternity.

Much gratitude goes out to the animal activists who tried to stop them.

Lisa Robertt, Indio

Re: Letters, March 9.

Seriously? Mr. Berger really thinks that throngs will visit the art museum because of the road closure and "Forever Marilyn"?

As a museum member of many years, I agree that throngs of hundreds did visit the museum after or before viewing Marilyn when she was placed downtown in the past. Unfortunately, that only happened on Thursday nights when the museum was free.

The rest of the time, meh, not so much.

Reinstall "Forever Marilyn" where it isnt a travesty in front of the museum and keep Museum Way open as a needed traffic diversion from Palm Canyon. Win-win.

Barb Kaplan, Palm Springs

Just as Gov. Andrew Cuomo revealed himself to be the worst of all possible combinations, that of ignorance and arrogance, causing the deaths of thousands in New York, we are now seeing the same ignorance and arrogance repeated by the Biden administration.

Our southern border is being invaded by South America. And while the Biden administration saysCOVID-19 testing is being done, nothing is being said about those who are crossing the border undetected. Those people are making their way into the population, spreading out and spreading whatever infectious diseases they may have.

According to the Border Patrol, theres more to worry about than COVID-19. I have the distinct impression that many who voted for Biden are about to experiencebuyers remorse, on a scale no language can describe.

Charles Gabriele,Bermuda Dunes

The first year I voted in a presidential election was 1956. I voted for Eisenhower. The Republican Party platform for that election included federal assistance to low-income communities, protection of Social Security, asylum for refugees, extension of the minimum wage, increased coverage for unemployment benefits, strengthening of labor laws so that workers could easily join unions, and assuring equal pay for equal work.

Today, this would be labeled a radical leftist socialist agenda."Liberal" and "progressive" have become nasty words.The party that once stood for the abolition of slavery, voting rightsfor women and fiscal responsibility has become the party of white supremacy, voter suppression and huge tax cuts for the persons who need them the least.

Both parties have moved to the right of Eisenhower.

Dwight Fine, Palm Springs

Recently, everything gets politicized or someone's feelings come into play. Should we wear a mask? Is it ok to take the vaccine?Was the election a fraud?

Why not let the scientists and doctors decide the medical issues?If the doctor says to wear a mask, then you must wear a mask. Why would a politician know more than a doctor or a biologist? Read Dr. Mona inthis paper and you are covered. Why turn the election into a political item?What is the evidence and what does it point to?Who cares whether you are a Republican or a Democrat?Let's look at the facts and get to the truth.

So, look only at nonpartisan news, and assess the facts with your brain, and do your own thinking.There are a lot of angry people around whose brain capacity is obliterated by emotions, opinionsor political leaning.Learn to listen to the other side they can't always be wrong, because if they are, there is something wrong with your line of reasoning.

Opinions, feelings, and politics don't count. Your brain does, and if you use it wisely, a lot of discord can be eliminated, and we can move forward. This is how we heal our country, no matter what anyone says.

Alan Goldstein, Rancho Mirage

The recent opinion piece (Bob Henry, Valley Voice, March 1) on repealing the second amendment was very disturbing. Removing guns from law-abiding citizens and giving government control over guns reeks of pure socialism and the unlimited control of individual rights.

The authors of the Constitution personally all suffered the injustices of tyranny and the denial of individual rights. The Bill of Rights was written to ensure the freedoms they were denied could be restored for the new nation. The authors were acutely aware of the evils of total government control and without protections written in law that our freedoms could be again taken away.

Repealing the Second Amendment would turn many Americans into criminals. The next step would be to remove the guns from owners.That would require search and seizure so repealing the Fourth Amendment's rights would be necessary.Where would it end?

The author of the opinion piece, a retired public school educator, contends no one needs guns for their protection as we have police for that. Unfortunately, the police are being defunded by liberal progressives who believe we don't need them. It is unfortunate for the youth of America that public education and higher learning schools offer too much political and social bias from "educators."

James Dravage, Indio

Read or Share this story: https://www.desertsun.com/story/opinion/readers/2021/03/21/letters-kudos-those-who-stopped-bird-shoot-and-marilyn-wont-help-museum/4775007001/

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Letters: Kudos to those who stopped the bird shoot. And Marilyn won't help the museum. - Desert Sun

On March 12, 2021, ALJ Clark Cheney issued the public version of Order No. 22 (dated January 7, 2021) denying Respondent Regeneron Pharmaceuticals (Regeneron) motion to terminate the investigation for lack of standing in Certain Pre-Filled Syringes for Intravitreal Injection and Components Thereof (Inv. No. 337-TA-1207).

By way background, this investigation is based on a June 19, 2020 complaint filed by Novartis Pharma AG, Novartis Pharmaceuticals Corporation, and Novartis Technology LLC (collectively, Novartis) alleging a violation of Section 337 by Regeneron in the importation and/or sale of certain pre-filled syringes for intravitreal injection and components thereof by reason of infringement of claims 1-6 and 11-26 of U.S. Patent No. 9,220,631 (the 631 patent). Regeneron filed a motion to terminate the investigation for lack of standing on the grounds that Novartis does not have a statutory cause of action to assert the 631 patent without adding non-party Vetter Pharma International GmbH (Vetter) as a complainant.

According to the Order, the relationship between Novartis and Vetter dates back to 2009 and was memorialized in an agreement dated January 27, 2009. Novartis was involved in the manufacture and sale of pharmaceutical products and Vetter supplied Novartis with pre-filled pharmaceutical products. On February 14, 2013, Vetter informed Novartis that pursuant to the terms of the 2009 agreement, Vetter owned certain intellectual property claimed in Novartis patent applications. Specifically, Vetter asserted ownership in a German patent application filed by Novartis (DE 20 2012 011 016 U), one of the foreign priority applications identified on the face of the 631 patent asserted in this investigation. The 2013 dispute led the parties to execute a fourth amendment to the 2009 agreement acknowledging a dispute as to the ownership of, and the rights of and the use related to, the intellectual property, including the 631 patent. On December 19, 2019, the parties executed a seventh amendment (the 2019 Amendment) to the 2009 agreement.

Regenerons motion to terminate focused on the scope of patent rights granted to Vetter in the 2019 Amendment. In particular, Regeneron argued that the 2019 Amendment granted Vetter such substantial rights in the 631 patent that Vetter must be joined as a co-complainant in this investigation, relying on language from the 2019 Amendment granting Vetter a co-exclusive license. ALJ Cheney disagreed, and found that the co-exclusive license to the 631 patent was limited and not enough to confer standing on Vetter. The ALJ noted that the assignment history of the 631 patent demonstrated that the inventors assigned their rights in the 631 patent to Novartis, and that Regeneron did not dispute that Novartis owns the 631 patent. ALJ Cheney then determined that Vetter was not granted exclusionary rights regarding the 631 patent sufficient to confer standing, stating that Vetters rights to exclude others from using the claimed invention are wholly contingent on the actions of Novartis and are limited and illusory. For example, the ALJ pointed to Vetters limited right to sublicense the 631 patent under the 2019 Amendment.

Regeneron also argued that the potential for serial litigation weighs in favor of making Vetter a party to this investigation. But ALJ Cheney found that the provisions of the 2019 Amendment demonstrate that Vetter has no right to re-litigate the investigation as complainant after the investigation is terminated. For example, Regeneron asserted that, when litigation between Novartis and Regeneron concludes, there is nothing in the [2019] amendment to the Agreement to prevent Vetter from providing a notice of infringement and, after six months, filing a lawsuit against Regeneron in its own name and under its own direction and control. The ALJ, however, stated that Regenerons argument seems predicated on the assumption that Vetter would notify Novartis of the same allegedly infringing acts at issue in this investigation, i.e., the importation into the United States of the EYLEA pre-filled syringe, and observed that that infringement (as defined in the 2019 Amendment) is in fact being litigated by Novartis in this investigation and that [t]he 2019 Amendment does not permit Vetter to bring suit regarding that act of alleged infringement once Novartis has done so.

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ALJ Cheney Denies Motion to Terminate Investigation in Certain Pre-Filled Syringes (337-TA-1207) - Lexology

The Standing Committee of the 13th National Peoples Congress, Chinas top legislature, adopted the Fourth Amendment to the 1984 Chinese Patent Law on October 17, 2020. The Fourth Amendment follows a series of amendments that were last adopted in 2008 and will become effective on June 1, 2021. Among the provisions is Article 76, establishing a new pharmaceutical patent linkage system modeled after the U.S. Hatch-Waxman Act. Article 76 of the Fourth Amendment was implemented in accordance with Article 1.11 of the Economic and Trade Agreement Between the Government of the United States of America and the Government of the Peoples Republic of China.[1]

Key provisions of Article 76 of the Fourth Amendment include:

There are several key differences between the U.S. Hatch-Waxman system and the new Chinese law. Chinas patent linkage system is not limited to small molecules and also includes biologics and traditional Chinese medicine. Further, China provides a much shorter stay period of only 9 months. This 9-month stay period only applies to small molecules and excludes biologics or traditional Chinese medicine. The market exclusivity period for first generic entrants (12 months), however, is far longer than that of the United States (180 days).

The patent linkage system for pharmaceutical patents in China is just developing, and the resolution mechanism for patent disputes under Article 76 of the Fourth Amendment currently lacks detail for both generic market entrants and patentees. One notable piece of information missing in the current legislation is whether there is an obligation for the generic market entrants to notify the patentee of the non-infringement statement. In this regard, stay tuned for updates on finalized draft rules, which are expected to provide further guidance on Chinas new patent linkage system.

[1]The text of the Phase One Trade Agreement with China (2020) is available at: https://ustr.gov/sites/default/files/files/agreements/phase%20one%20agreement/Economic_And_Trade_Agreement_Between_The_United_States_And_China_Text.pdf. Article 1.11 begins on page 1-6 on Chapter 1 (page 7 of the PDF).

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Chinas Hatch-Waxman Act: Patent Linkage System Implemented in the 4th Amendment to the Chinese Patent Law - JD Supra