Monthly Archives: July 2021

Background

The COVID-19 pandemic has been sweeping the world since the end of 2019, exerting a far-reaching impact on global economic and technological development. With the concerted efforts of countries around the world and the promotion of vaccines, the COVID-19 pandemic has been effectively controlled in most countries. China undoubtedly is outstanding in the fight against the pandemic. Despite having the world's largest population, China not only efficiently controlled the epidemic in a short time but also actively promoted technical and economic cooperation at home and abroad. The fourth amendment to the PRC Patent Law ("New Patent Law") in effect from 1 June 2021 demonstrates the determination of the Chinese government to improve the protection and enforcement of patent rights as well as promote the implementation and application of patented technologies, which is certainly a very good opportunity for domestic and foreign entities and individuals doing business in China.

1. Appropriate burden of proof required for claiming high damages for patent infringement

In patent infringement disputes, it would be very advantageous for patentees as a whole to fulfil the burden of proof. First, pursuant to the New Patent Law, the damages can be calculated based on the patentee's actual loss OR the infringer's profit from infringement, not IN SEQUENCE. Although the profit from infringement is mostly applied in practice, this change reflects the relaxation of legal requirements on the burden of proof on patentees. Moreover, the New Patent Law provides a substantial increase in the amount of statutory damages and the punitive damages up to five times the amount calculated according to the aforesaid method. However, in our opinion, the problem about calculating the profit from infringement, among others, are still there due to the practical difficulty in proof by patentees, especially in preservation of evidence related to the infringing B2B goods. Therefore, the actual effect of the amended provisions on infringement damages will depend on the subsequent implementation rules of the Patent Law as well as the specific provisions of other relevant judicial interpretations. The entities and individuals doing business in China now still need to bear a greater burden of proof in patent infringement disputes in order to prove the existence of infringement and the amount of profit from infringement.

2. More comprehensive and lasting patent protection conducive to maintaining a dominant position in the Chinese market

Design protection has always been favoured by leading companies, especially electronic instrument manufacturers, automobile manufacturers, and in the artificial intelligence field. The New Patent Law is a really good news for the manufacturers whose products rely on shape design. Take auto manufacturers as example. Automotive enthusiasts or consumers can tell an auto brand by observing only a partial structure of a car, such as the design of the front or rear bumper of a car or the car body, with no need to look at other parts. For automobile and the like, the shape design of some components itself constitutes the independent design that significantly contributes to the appearance of the whole product. Under the earlier patent law, the GUI patent applicant is required to combine the GUI design with a specific physical product for application as a whole. However, it is the GUI idea design, not the physical product, that really reflects the intellectual achievements of the applicant and is what the applicant originally intends to protect, especially in the field of artificial intelligence and communication devices. After the New Patent Law becomes effective, in China the companies involved can file the GUI patents applications for product appearance in which the local GUI design to be protected can be indicated with solid line and the physical product is indicated with dotted line. At the same time, a description is given in the abstract of design application that only the GUI design is under protection, so as to weaken the impact and limitation of the physical product on the GUI design and ultimately provide the real protection to the GUI design.

Invention patents and design patents granted in China will likely receive a longer term of protection. As for design patents, the New Patent Law extends the term of protection to 15 years, same as the Hague Agreement Concerning the International Deposit of Industrial Designs. As for invention patents, the New Patent Law provides the supplemental protection period for compensating the patent right duration due to unreasonable delay in the patent examination procedure, and also to the patents related to innovator drugs that have the marketing approval in China. Entities and individuals doing business in China can have the exclusive protective rights and interests, which are more comprehensive and lasting, by applying for invention patents and design patents. Even so, the "unreasonable delay" applicable to invention patents will be further specified in the subsequent implementation rules of the Patent Law and examination guidelines.

3. Pharmaceutical patent linkage system to promote innovation and development

The latest amendments to the Patent Law have a significant influence on pharmaceutical manufacturers. The establishment of pharmaceutical patent linkage, a.k.a., early settlement mechanism for drug patent disputes, greatly facilitated innovation and development of innovator drug manufacturers. Under the New Patent Law, an innovator drug manufacturer can have a patent infringement dispute resolved with court judgements, or administrative rulings from the National Intellectual Property Administration (CNIPA), before a generic drug is marketed, so that the marketing approval for such generic drug is negatively affected. The Patent Law is a superior legislation in absence of specific provisions. More details are yet to be separately set out by the National Medical Products Administration and the CNIPA together. As we all know, the research and development of a new medicine require a huge investment in money and time. In China where generic drugs are dominant, with the supplemental protection period mechanism and the pharmaceutical patent linkage system under the New Patent Law, innovator drug manufacturers may be more motivated to devote themselves to development and innovation, strengthen their patent portfolio, and promptly take relevant measures to defend their legitimate rights and interests to the greatest extent by means of drug patent registration and regular monitoring of the declaration information from generic drug manufacturers.

4. Further promotion to the exploitation of patented technologies

To promote the exploitation of patents, the New Patent Law introduces the open licensing system, grants employers the right to dispose of at their discretion the employee invention related patent rights and the right of patent applications, and encourages the employer to share profits with inventors in the form of stocks, options and dividends. In this way, patentees are encouraged to license their patents, so that the asymmetry of information related to patent licensing can be reduced or eliminated. The state-owned enterprises, colleges and universities, and scientific research institution are allowed to dispose of their own patents with more freedom. The various rewards and remunerations for employee inventions can also relieve monetary stress of enterprises and raise the enthusiasm of inventors. Foreign companies need to be careful about the compliance issues with respect to payment of the rewards and remunerations for employee inventions, such as, whether the remuneration should be paid to inventors and who should make payment to inventors when intellectual property rights are managed in a centralized manner within a group company.

With regard to the cross-border technology transfer concerned about by many foreign companies, the New Patent Law has no specific provision. The Chinese policies on mandatory technology transfer as deemed by some foreign companies were adjusted in the Regulations of the People's Republic of China on the Administration of Import and Export of Technologies amended in 2019. For example, the regulations deleted the infringement liability provisions and the mandatory provisions relating to the ownership of technological improvements. These changes increase the autonomy of contract parties and also adapt to the development of international technology transfer. The problem concerned about by transferors of technology that technical secrets may be disclosed during the process of transnational technology transfer is up to the parties to reach agreement in accordance with the Civil Code and relevant judicial interpretations, based on the natures of the fields involved. When doing business with Chinese companies, for example, in the form of technical cooperation or joint venture, foreign companies still need to design the strict contractual clauses in order to protect their legitimate rights and interests.

Outlook

At the time when the COVID-19 pandemic begins to improve and the global economy recovers as a whole, the New Patent Law comes into effect, like a powerful driving force for the current rapid technological and economic development of China. Generally speaking, the New Patent Law is favourable to patentees. In the situation of a full economic recovery, the introduction of punitive damages, patent term extension, and pharmaceutical patent linkage system may prompt more patentees to protect their legitimate rights and interests by means of litigation, and improve China's judicial environment for intellectual property protection.

The negative side is that an increase in the number of lawsuits may prolong the time period of adjudication of patent disputes, especially the foreign-related litigations for which the civil procedure law has no provision on the time limit of adjudication. In addition, the lengthy judicial appraisal procedures are usually required to resolve patent disputes. Therefore, foreign patentees doing business in China should be prepared for the long-term litigation proceedings for patent infringement and at the same time avoid submitting the disputes to the courts that have accepted many cases. This certainly needs comprehensive consideration and specific analysis case by case.

In addition, the implementation rules of the Patent Law as well as other relevant judicial interpretations and measures have not yet been promulgated. Some provisions of the New Patent Law need to be specified with reference to the subsequent regulations. Nonetheless, it is obviously worthwhile to safeguard your business by making the most of intellectual property.

Excerpt from:
Patent Issues Required Attention for Doing Business in China with the Improvement of the COVID-19 Pandemic Situation - Review on the fourth amendment...

Last week, a major federal court ruling on privacy rights highlighted the flawed, police-centric way that we typically talk about public safety. In a divided decision, the Fourth Circuit Court of Appeals barred Baltimore police from using a new aerial surveillance program to indiscriminately target and track peoples movements. Analyzing data collected through the so-called spy plane program, the court said, counts as a search under the Fourth Amendment, and therefore requires police to obtain a warrant, just as when searching a home. Its a cutting-edge decision that comes as courts increasingly grapple with how the Fourth Amendments protections against police intrusions apply to new surveillance technology.

But the case is also important for the debate it sparked among the courts judges. In dissent, Judge J. Harvey Wilkinson III, a Reagan appointee, said that restricting police surveillance will tie the citys hands against a serious public safety crisis. He accused the majority of ignoring Baltimores high murder rate and said the ruling leaves only hopelessness for the good people of Baltimore, especially our dispossessed communities where rates of gun violence are highest.

Judge Roger Gregory, the first Black judge to ever serve on the Fourth Circuit, was having none of it. In response, he explained how this critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons.

The dissents rhetoric matches that of police chiefs clamoring for bigger budgets, particularly amid a one-year national jump in shootings. But the same assumptions are standard fare in reporting on crime and politics. Last week, for example, the New York Times equated calls for funding the police with treating public safety as a central political concern and adopting themes of public safety. The framing both reduces the concept of safety to narrow criminogenic terms (safety depends entirely on crime rates) and elevates punitive responses to crime and violence (more police, more arrests, and more incarceration) over policies that would invest in communities and promote overall health.

In his concurrence, Judge Gregory emphasized that such a blinkered view misunderstands the structural causes of violence and the futility of policing in addressing them. I am skeptical that [the dissents] logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for, he wrote. Segregation effectively plundered Baltimores Black neighborhoodstransferring wealth, public resources, and investment to their white counterpartsand the consequences persist today. . . . So it is no coincidence that gun violence mostly occurs in the portions of the city that never recovered from state-sanctioned expropriation. Absent reinvestment, cycles of poverty and crime have proliferated.

Rather than reinvesting in dispossessed communities, Gregory wrote, the city over-polices them: Baltimore spends more on policing, per capita, than virtually any other comparable city in America, and in 2017, for example, a greater proportion of its general operating fund spending was allocated to policing than to education, transportation, and housing combined.

Gregorys opinion aligns with public health experts who have been calling for a more accurate and equitable conception of public safety, one that includes overall health and well-being and considers the damage that our systems of punishment inflict. Last month, anthropologist and physician Eric Reinhart argued in Health Affairs that redefining public safety to account for the harms of policing and incarceration rather than continuing to cede this influential discourse to reductive criminological terms is key for ensuring health, security, equality, and positive freedom for all U.S. residents.

As law professor John Pfaff wrote in The New Republic last week, our criminal legal system produces tremendous harm and immiseration, even death, not just for [incarcerated people] but for their families and communities. In a damning indictment of our fundamental indifference to the lives of the millions who come in contact with this system, we have no idea what the criminal legal systems actual humanitarian costs are, but they are surely staggering.

Even with incomplete information, we know that police killings are a leading cause of death for young Black men, and that police violence sends tens of thousands of people to the emergency room every year. We also know, as Reinhart writes, that jails and prisons inflict increased rates of chronic diseases that impose long-term medical needs and cost and reduce life expectancy. Even pretrial detention without a conviction, enforces persistent economic hardships and drives high rates of unemployment, homelessness, and food insecurity.

Beyond that, a growing body of researchwhat Reinhart calls carceral-community epidemiologyshows that incarceration spreads disease and increases mortality rates in surrounding communities, that our world-leading proclivity for incarceration, while disproportionately harmful to nonwhite people and dispossessed communities, is killing us all. Given their often poor conditions and porous nature, with high turnover and the constant churn of staff and visitors, jails and prisons are not like Vegas: What happens there does not stay there. Carceral institutions worldwide have long functioned as disease multipliers and epidemiological pumps for surrounding communities in relation to HIV, tuberculosis, hepatitis C, influenza, and other infectious diseases, Reinhart wrote.

This reality has been of acute importance throughout the pandemic. In May, Reinhart co-authored a study concluding that cycling individuals through Cook County Jail in March 2020 alone accounted for 13 percent of all COVID-19 cases and 21 percent of racial COVID-19 disparities in Chicago as of early August. Their analysis also showed that jail cycling is the strongest predictor of COVID-19 rates, considerably exceeding poverty, race, and population density.

Other research shows that sending more people to county jails leads to higher rates of premature community death. In February, a retrospective, longitudinal study in The Lancet examined cause-specific mortality at the county level in the U.S. over a 30-year period. It found a short-term association between county jail incarceration and mortality, with mortality due to infectious disease, chronic lower respiratory disease, substance use, and suicide as the strongest drivers. The study put the problem explicitly in public health terms, noting the risks of community-level exposure to high incarceration rates, as though the county jail was polluted water or a toxic waste site.

One of the studys authors, Sandhya Kajeepeta, a doctoral student in the Department of Epidemiology at Columbia University, told me that research framing public safety more broadly to include public health and long-term well-being really challenges our reliance on jails and prisons to keep people safe.

For Reinhart, the effort to reclaim and redefine the influential rhetoric of public safety must make clear that collective safety is best improved not by policing and prisons but rather by building robust public systems of carethat is, of economic security, environmental protections, labor rights, and housing.

Thats also the view of Leaders of a Beautiful Struggle, the grassroots advocacy organization that challenged the Baltimore surveillance program. Lawrence Grandpre, the groups director of research, wrote that their opposition to more surveillance was neither anti-police, nor born of indifference to gun violence. Instead, he wrote, we believe that safety is not simply the absence of violence, but the creation of conditions for human flourishing. Thus, we refuse the false . . . choice between community instability created by violent crime, with the community instability caused by mass incarceration, unaccountable policing, and the slow starving of our community institutions to feed a [half] billion-dollar police budget deemed to be the only investment our community needs.

Policing Is Not Public Safety

Go here to see the original:
Policing Is Not 'Public Safety' - The Appeal

In today's Orders List, the Supreme Court granted nine petitions for certiorari in cases that will be heard next term, added an original jurisdiction case to the docket, summarily reversed the grant of a habeas petition by the Eleventh Circuit, and resolved a few outstanding matters involving cases that had been put on hold due to the change in Presidential administration. The Court also rejected certiorari in a number of cases, several of which produced dissenting opinions on statements respecting the certiorari denial.

One such opinion I wanted to highlight was Justice Thomas' statement respecting the denial of certiorari inHoggard v. Rhodes, a qualified immunity case, albeit one that involves university administrators rather than cops.

Here's the Thomas opinion:

As I have noted before, our qualified immunity jurisprudence stands on shaky ground. Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (opinion concurring in part and concurring in judgment); Baxter v. Bracey, 590 U. S. ___ (2020) (opinion dissenting from denial of certiorari). Under this Court's precedent, executive officers who violate federal law are immune from money damages suits brought under Rev. Stat. 1979, 42 U. S. C. 1983, unless their conduct violates a "clearly established statutory or constitutional righ[t] of which a reasonable person would have known." Mullenix v. Luna, 577 U. S. 7, 11 (2015) (per curiam) (internal quotation marks omitted). But this test cannot be located in 1983's text and may have little basis in history. Baxter, 590 U. S., at ___, ___ (slip op., at 2, 4) (opinion of THOMAS, J.).

Aside from these problems, the one-size-fits-all doctrine is also an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions. Ziglar, 582 U. S., at ______ (opinion of THOMAS, J.) (slip op., at 45).* This petition illustrates that oddity: Petitioner alleges that university officials violated her First Amendment rights by prohibiting her from placing a small table on campus near the student union building to promote a student organization. According to the university, petitioner could engage with students only in a designated "Free Expression Area"the use of which required prior permission from the school. The Eighth Circuit concluded that this policy of restricting speech around the student union was unconstitutional as applied to petitioner. Turning Point USA at Ark. State Univ. v. Rhodes, 973 F. 3d 868, 879 (2020). Yet it granted immunity to the officials after determining that their actions, though unlawful, had not transgressed "'clearly established'" precedent. Id., at 881.

But why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question. See Ziglar, 582 U. S., at _____ (opinion of THOMAS, J.) (slip op., at 45).

This approach is even more concerning because "our analysis is [not] grounded in the common-law backdrop against which Congress enacted [1983]." Id., at ___ (slip op., at 5). It may be that the police officer would receive more protection than a university official at common law. See Oldham, Official Immunity at the Founding (manuscript, at 2223, available at https://ssrn.com/abstract=3824983) (suggesting that the "concept of unreasonableness [in the Fourth Amendment] could bring with it [common-law] official immunities"). Or maybe the opposite is true. Lee, The Curious Life of In Loco Parentis at American Universities, 8 Higher Ed. in Rev. 65, 67 (2011) (discussing how "[f]rom the mid-1800s to the 1960s" "constitutional rights stopped at the college gatesat both private and public institutions"). Whatever the history establishes, we at least ought to consider it. Instead, we have "substitute[d] our own policy preferences for the mandates of Congress" by conjuring up blanket immunity and then failed to justify our enacted policy. Ziglar, 582 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 6).

The parties did not raise or brief these specific issues below. But in an appropriate case, we should reconsider either our one-size-fits-all test or the judicial doctrine of qualified immunity more generally.

I think it is only a matter of time before the Court revisits qualified immunity. The Court's liberals are clearly concerned the doctrine encourages impunity within law enforcement, and the Court's originalists and textualists are increasingly aware that the doctrine, at least as currently formulated, lacks a firm constitutional or statutory grounding.

Yet as this opinion indicates, the first crack in the QI edifice might not come in the law enforcement context. Rather, it is quite possible that the first cracks will appear in the public university setting. As Thomas notes, university administrators not faced with the need to make snap judgments under exigent circumstances. They often have university counsel at their side. Moreover, even where there are not Supreme Court cases directly on point, the requirements imposed by the First Amendment and Equal Protection Clause are sufficiently clear that university administrators could be considered to have sufficient notice of what sorts of conduct is or is not acceptable. Thusit would seem that prudential arguments for maintaining QI are less strong in the university setting than they might be in other contexts (even before one considers the question of what sorts of immunity did or did not apply to law enforcement historically).

Originally posted here:
Justice Thomas Takes Another Shot at Qualified Immunity - Reason

Elon Musk, founder and chief engineer of SpaceX speaks at the 2020 Satellite Conference and Exhibition March 9, 2020 in Washington, DC (Getty Images)

Elon Musk's SpaceX has been ordered by a US district judge to comply with a Department of Justice subpoena probing its hiring practices after the company was accused of discriminating against applicants based on their citizenship status.

CNBC reported that the subpoena was originally filed last October by the Immigrant and Employee Rights Section of the Department of Justice's Civil Rights Division.

Fabian Hutter, an applicant to SpaceX, claimed his application was denied because he is not American.

Mr Hutter has dual citizenship in Austria and Canada, but is a lawful permanent US resident.

"Specifically, the charge alleges that on or about March 10, 2020, during the Charging Partys interview for the position of technology strategy associate, SpaceX made inquiries about his citizenship status and ultimately failed to hire him for the position because he is not a US citizen or lawful permanent resident," DOJ attorney Lisa Sandoval wrote in a court filing in January.

A court order filed in December also revealed that the DOJ has requested documents relating to 3,000 other employees in its investigation into the alleged discriminatory hiring practices.

The DOJ plans to investigate whether the company has engaged in any other discriminatory hiring practices.

The company has been trying to fight the subpoena for months, but the latest ruling will force the company to comply within three weeks.

In April, SpaceX objected to the recommendation made by another federal judge suggesting the company be forced to comply with the subpoena.

That court recommended in March that there are "several" investigations into the company, according to CNBC. It rejected SpaceX's argument that the subpoena was "government overreach.

Lawyers for the company argued that the DOJ's investigation was overkill considering Mr Hutter's complaint.

No matter how generously relevance is construed in the context of administrative subpoenas, neither the statutory and regulatory authority IER relies on, nor the Fourth Amendment to the U.S. Constitution, permits IER to rifle through SpaceXs papers on a whim and absent reasonable justification, SpaceX said.

Story continues

The company argued that the investigation was "excessively overbroad, and that the IER's subpoena should be denied.

The company claimed that it currently employs "hundreds of non-US citizens" and said it did not hire Mr Hutter for the position because the company eliminated the position.

Under US International Traffic in Arms Regulations, SpaceX is allowed to hire noncitizens who have a green card.

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Link:
Department of Justice probing SpaceX for hiring discrimination - Yahoo News