The Greater China IP Updates – December 2022

December 28, 2022
Taiwan’s Judicial Yuan Announces Draft Amendment to the IP Case Adjudication Act Here are the highlights of what is likely to be the biggest overhaul of the IP Case Adjudication Act since it was implemented in 2008: The administrative remedy system for patent and trademark cases will change from the current administrative litigation system to the adversary system.  If a party files an appeal with the court against a Decision rendered by the IP Office, the case will be tried in accordance with the civil procedure, and the defendant, depending on the nature of the case, may not be the IP Office, but instead may be the opposing party such as an invalidation petitioner, or the applicant of a cancellation action. Civil disputes relating to patents, software copyrights, and trade secrets will be mandatorily represented by lawyers.  Unless the value of the plaintiff’s claim is low, that rule will be valid for other civil cases too. In principle, the court should discuss with the involved parties via their lawyers regarding the planning of a trial unless the case does not require legal representation.  In patent litigation cases, the judge shall, in a timely and appropriate manner, disclose his or her interpretation of any disputed terms recited in the claims, ex-officio or upon the request of a party. Currently, reports drafted by court experts formally known as Technical Examination Officers (TEOs) are not disclosed to any parties.  The Amendment now makes it clear that when a judge deems it necessary, he or she may disclose all or part of the content of the Reports drafted by TEOs and the parties...

You Have the Right to a Fair Trial

December 26, 2022
You have the right to a fair trial…that is if you are ever to be accused of crime. In fact your right to a fair trial is an internationally recognised human right which rarely makes for viral content (alongside other sexier declarations of human rights), but is nonetheless equally important. Ultimately, many people who are accused of crimes will be found innocent. The goal then is to have enough safeguards in place so that when all is said and done, those found to be innocent will also be found intact with (hopefully) little losses and enough pathways to return to their regular lives. Every person is presumed innocent unless and until proven guilty This is a fundamental principle behind the right to a fair trial. It is the responsibility of the state to prove that someone is guilty, not for the suspected person to prove their innocence. Being convicted of a crime has serious, sometimes devastating, consequences. Therefore, States must prove guilt to a high standard. If there is ‘reasonable doubt’, an accused person must be given the benefit of the doubt and cleared because the state’s ‘burden of proof’ has not been met. In practice there are many ways that this right is undermined. Accused people are often treated as criminals before they have had their day in court. We see this when : • Law enforcement parade arrested people through. public places so they can be photographed by the media – also known as perp walks. • Law enforcement requires accused persons to wear measures of restraint that make them appear dangerous. Coercion is wrong on so...

Can WhatsApp Messages Be Used as Evidence

December 26, 2022
With so much of our lives online, what do we do when things go awry? Do our verbal agreements over messaging platforms like whatsapp count? Generally speaking, electronic evidence is less conclusive than traditional evidence (mainly paper documents). It is more difficult to prove the integrity of electronic evidence and more challenging to document enough evidence electronically to tell the full story. Electronic devices are fast replacing ‘paper documents’ in commercial transactions all over the world (including Vietnam) Emails, video calls and messaging apps are increasingly being utilized by enterprises for information exchange, contract execution and implementation. What are some clear advantages of electronic transactions? Efficient Convenient Cost-effective What are the hidden risks?  Generally, electronic evidence is less conclusive compared to traditional evidence. When things go awry, the identities of the sender and recipient, the time of sending, the receipt of goods or documents, and the authority to sign become sources of endless contention. How electronic evidence fair against transition evidence Electronic evidence Traditional evidence Can be structurally distorted when stored in computer or transmission lines. Difficult to be structurally changed. Can be modified without any trace. Changes are easier to detect. Hard to identify as it is stored digitally and encrypted. Easy to identify by viewing. Simple to duplicate Hard to duplicate. Quality of evidence depends on the quality of the technology Quality of evidence depends on its physical condition. These “hidden risks” may prove to be extremely costly to the business. Tips to manage risks in a modern world During the execution, performance and termination of a commercial contract, use electronic mails as the primary form of...

Is Business Travel Dead?

December 20, 2022
It is a pleasant, sunny morning. My coffee is frothing nicely, the delectable aroma wafting gently about my bedroom. I have just donned my favourite pair of beach Bermudas, in striking blue emblazoned with little yellow pina coladas. I draw the curtains wide to let in the bright sunshine and grab a bag of potato chips on my way across the room. Unfortunately, I am not heading off for a nice swim or frisbee in the park. Instead, it is a Monday, and I settle at my desk to log on for a meeting with my international counterparts.  This is 2022, and the world has been upended by more than two years of a global pandemic. Many of our offices have gone from comprising system furniture parked in long rows in a nondescript high-rise commercial building, to comfortable gaming chairs and ergonomic tables nestled in our bedrooms or study rooms. Our colleagues no longer lean over the cubicle partitions with coffee cups in hand, sharing their latest run-in with the HR department, but now stare at us emotionlessly out of little digital pigeonholes on our monitor screen, their silhouettes morphing oddly with every twitch or shake of the head. “Let’s meet at the lobby for lunch” has vanished from our vernacular, replaced by “I think your mic is muted”.   Against the backdrop of all this, a genuine question arises – when the pandemic is fully behind us, will people return to in-person meetings and dispute resolution hearings? Or will the comfort of our homes and the inertia of not needing to wear proper trousers prove decisive in shaping the...

Remodelling The Legal Workforce

December 20, 2022
Simmons & Simmons Adaptive introduces us to their Alternative Legal Service Offering in Hong Kong Simmons & Simmons is one of the latest law firms to establish an alternative legal service offering in Hong Kong – Simmons & Simmons Adaptive. Their flexible resourcing model aims to connect the best lawyers and business professionals with best-fit client assignments. We sat down with Sarah Thompson (Partner and Global Head of Adaptive), Victoria Moore (Hong Kong Resourcing Manager) and Jonathan Hammond (Partner and Head of Asia) to discuss. What prompted the move to HK? Sarah: Adaptive launched in the UK in 2014 and our reason for the initial launch is no different to our reason for setting up in Hong Kong (and why we’re looking at other jurisdictions as well) – our clients struggle with resourcing and increasingly look to their partner law firms to offer a solution. Simmons & Simmons, as a law firm, no longer just does law. We are expected to be a business partner and to solve many more things for our clients. Adaptive was the brainchild of Jonathan. We had been seeing our clients become leaner, needing to do more with less, and having more project work. You need only to look at the regulatory space and the sheer number of projects over the last five years to really understand that cry for help: “We need quality resources!” We have that same issue in our own firm – how do we access the right people, where and when we need them?  At the same time, we were recognizing that talent was changing. How people want to work,...

How to Harness an Agile and Innovative Mindset During Periods of Change or Uncertainty

December 20, 2022
Whilst we all appreciate the importance of a productive and creative mindset, it can be challenging to resist the urge to default to old habits or conservative thinking in uncertain times. As we face questions about the global economy and consider the impact of major market disruptors, we wanted to look at how one can remain agile, effective and even opportunistic, both individually and as a team.  Stephanie Szeto, Head of Asia for Peerpoint, Allen & Overy’s flexible resourcing business, spoke to Sarah Millson, a senior learning and development consultant with Actualize Hong Kong, and Stacy Lopez, a certified professional career and transition coach and member of Peerpoint’s consultant management team, about some of these themes. “The fight or flight part of the brain sometimes sees change as a perceived danger and we often pull from previous experiences when reacting in response to it.” Stephanie: Change in the face of uncertainty can cause people and organizations to react with conservatism, caution and even anxiety. How do we develop an open and opportunistic mindset in the face of change? Stacy: My career has taken a number of different turns and something that I have learned, and which was a real game-changer for me, is that “Everything is an opportunity”. When we are faced with change and discomfort, that is in fact how we grow. So, ask what the potential opportunity is, what are you meant to learn and how are you going to grow and move forward?  The fight or flight part of the brain sometimes sees change as a perceived danger and we often pull from previous experiences when...