It is confirmed that the Intellectual Property Rights law and new legal proceedings which have been planned by the Judicial Yuan for several years will take effect on this July 1st. According to Article 7 of Intellectual Property Case Adjudication Act and sub-clause 1 and 4 of Article 3 of Intellectual Property Court Organization Act, any future civil litigations of the first and second instances from Patent Act, Trade Secrets Act, Integrated Circuit Layout Protection Act, Plant Variety and Seed Law, and Fair Trade Law will be given to the Intellectual Property Court for jurisdictions.

Other than being more professional and efficient, comparing the newly established Intellectual Property Court with the old systems, the major difference between them is the new one will conduct the "Three-In-One System" which combines with civil, criminal, and administrative proceedings. Therefore, future litigations of new systems will not be effected by the slow-moving litigations which reported from patent cases. Even more, under the new system, the measures of "the judge shall decide the effectiveness of IP based on the merit of the case" has also being recommended; in another word, the judges of the Intellectual Property Court can handle directly with the arguments of patent validity and later with the infringement or the civil damages and indemnification without being forced to discontinue the litigation process. Through this measure, it not only can solve all related disputes at one time, but also can substantially diminish the differences between the Administrative Relief and the court litigations processes.

Despite the standard of new litigation process is quite complete; however, the awkward situations of different views between the Supreme Administrative Court and intellectual property litigations are still inevitable. Until now, there is still no clear and definite ideas on how a party should seek relief solutions derived from litigations. Because of the intellectual property litigations give weight on efficiencies and the quality of debates. Also, the ultimate purpose of carrying out such litigations, are to seek the commercial cooperation. Hence, for both parties to reach mutual understanding quickly and to evaluate the essentiality for litigations, the Intellectual Property Court also further non-mandatory requires judges must be "provide his legal opinions and disclose conviction". This measure enables the judges to confirm legal relationship, related disputes, and to give unbiased views and opinions from the legal prospective with the litigant; for which to let the party, before the ruling, understand the technologically level of the judges and to decrease the uneasiness and insecurity between both parties; or even more, to help both parties reach settlements without going through meaningless litigations.

In addition, with the official launch of the new litigation system and courts, any old and new intellectual property litigations will be handled by the general principles of "the new lawsuit case will be sent into the new IP court, the appeals will follow the new code of procedure". Hence, until the new systems bring into force on July 1st, any "new litigations" within the jurisdiction of the Intellectual Property Court will be sent to this court and handled with the new litigation system. Any "old litigations" before July will be, in principle, given back to the original courts and judges to proceed with the new litigations systems; at the same time, for those already-carried-out proceedings, its effectiveness will not be impaired. As of now, other than abovementioned measures, the related bylaws should also aim to establish related regulations for matters such as the protections derived from trade secrets during litigations or the rules of seeking a confidentiality preservation order, in order to perfect our future abilities of intellectual property litigation handling, for which to provide faster and fair protections for intellectual property rights of enterprises.

The Ministry of Finance has indicated that they have already communicated with Ministry of Economic Affairs regarding several subjects of related measures after the Statute for Upgrading Industries has been repealed and relevant matters. Meanwhile, regarding for putting the subjects about "repeal of the Statute for Upgrading Industries" and adjusting the exempt limit of income tax as "the Prior Bill for deliberation" during the meeting of Tax Reform Committee, both sectors have reached the mutual understanding, and expected to complete the legislation during 2009.

The Ministry of Finance stated that, the repeal of the Statute for Upgrading Industries should be "Repealed Completely" and "Without any Reservations" earlier on; however, due to the election campaign of the new government which once promised to reserve the rewards of "research and development" and "talent training", the Ministry of Finance has officially informed the Ministry of Economic Affairs that they will accept the result of "conditional repeal" of the Statute for Upgrading Industries. Finally, the Ministry of Finance and the Ministry of Economic Affairs have reached the mutual understanding. In addition, the Ministry of Finance states that although its is true that enterprises can raise its competitiveness through the measures of rewards of R&D and talent training, but more practical is going to take the method of direct compensation. If possible, the Ministry of Economic Affairs also hopes to reward without tax exemption. However, the Ministry of Finance might have some concerns, but has not refused officially. It has showed that with the new government, both sectors have expressed their good goodwill to solve the repeal of the Statute for Upgrading Industries problems, which have debated for many years. As a result, the communication between both sectors this time will help the remaining or abolition issues of the reward policy, during the repeal of the Statute for Upgrading Industries in 2009; also it has created some evolutional opportunities for revolution of income tax legal framework.

Regarding the common consensus of the Statute for Upgrading Industries conditional repeal, some experts have different view points. They think the Statute for Upgrading Industries conditional repeal is in fact that the main factor for the current unfairness of taxation, where they also have the concerns regarding the government should be repealed completely, and not make it to be partially revived. However, as the expiration time of the Statute for Upgrading Industries will come to an end in 2009, new government is taking into consideration of several measures as canceling the additional 10% Enterprise Income Tax on the profit reserve, planning to lower the Enterprise Income Tax rate to 20%, or even more aggressively reviewing methods of canceling tax exemption on industries; however, only for the functional tax exemption on the R&D and talent training will still remain. To look as a whole, these actions will definitely have some serious "too cumbersome to be effective". The experts have called upon the new government that the economic development of Taiwan should not rely on tax exemptions, but presenting the ambition to reform.

Once again, the Ministry of Finance has emphasized that the revenue from taxation will increase more than one hundred billion dollars when the repeal of the Statute for Upgrading Industries comes to the end in 2009. The government expects to use this fund to conduct some measures, such as lowering the Enterprise Income tax rate and increasing the tax exemption limit. Once the legislation has been accomplished, the public can enjoy the benefits of tax exemptions in 2010.

The Legislative Yuan approved the third reading of the 31bis of the amendment to a WTO agreement on 23 May 2008. According to original Trade-related Aspects of Intellectual Property Rights (TRIPS) Article 31(f), any medicine produced under compulsory licensing shall be authorized predominantly for the supply of the domestic market. However, it would limit the capacity of countries that could not make pharmaceutical products from importing cheaper generics from other countries where pharmaceuticals are patented. The Protocol Amending the Agreement on TRIPS will make it easier for underdeveloped countries to import cheaper generic drugs under compulsory licensing and deal with grave public health problem.

The Doha Declaration on TRIPS and Public Health in November 2001 confirmed that countries have free to determine the grounds for granting compulsory license and the decision was made in August 2003. In December 2005, WTO General Council revised the amendment about Article 31(f) of the TRIPS Agreement that production under compulsory licensing must be predominantly for the domestic market. The amendment could be helpful to poorer countries to combat serious disease such as AIDS/HIV, tuberculosis, malaria, SARS, or avian influenza. Generally speaking, the medicines produced under compulsory licensing are inexpensive and different from original ones in appearance. That means the suppliers should distinguish the products through special packaging or coloring ensured that such distinction will not have impact on price, and the licensee should announce the mentioned information on the website.

In accordance with the decision by the General Council, two thirds of members have formally accepted it before 31 December 2009 then the amendment will take effect. So far, the approved countries are about 10% of WTO. The members of acceptance are United States, Switzerland, El Salvador, Republic of Korea, Norway, India, Philippines, Israel, Japan, Australia, Singapore, Hong Kong, China, European Communities, Mauritius, Egypt, and Mexico.

Health, Environment and Labor Committee of the Legislative Yuan deliberated the bill of Greenhouse Gas Reduction Act on April 15, 16 2008. Lacking of supplementary measures such as general goal of emission controls, concrete process, relevant policies on climate change, and allocation of carbon emission, the proposed law should be checked again after hearing that aimed at the comments of public.

With reference to greenhouse gas emission, there are two international conventions. The UN approved "United Nations Framework Convention on Climate Change" aimed at stabilizing greenhouse gas concentrations in the atmosphere in 1992. On 11 December 1997, Kyoto Protocol was adopted and entered into force on 16 February 2005. It sets binding targets for 37 industrialized countries for reducing greenhouse gas emissions, and the amount to an average of 5.2% against 1990 levels from 2008 to 2012. Even though Taiwan and other developing countries were not included in the agreement, as a member of international society, we shall have the responsibility to fulfill the obligation. The Executive Yuan started to draw up Greenhouse Gas Reduction Act since 2000, and it was referred to committee for examination in February 2006. The purpose are not only making rules to control greenhouse gas emission but also protecting environment and developing economy in Taiwan. The Act takes measures of controlling total amount of greenhouse gas, and requires industries making limitation on carbon emission. Once the industries increase emission because of magnification or renovation, they should carry carbon transactions out on the platform appointed by Environmental Protection Administration.

However, without sufficient information about base year and the percentage of emission amount, the Greenhouse Gas Reduction Act aroused dispute. Besides, the different standards such as free or charge percentage of greenhouse gas emission would effect cogitation of proprietor. Thus the government should ensure the greenhouse gas emission percentage in accordance with free trading or restriction. For example, the free limit of carbon emission should not be traded and controlled by government. As soon as the Act is approved and enforced, all local industries should be enrolled on the National Greenhouse Gas Registry System and proposed plans to reduce emission. It is possible to raise risks but lower inclination of investment to heavy industry. For this reason, the authorities concerned should provide assistance or guide in corresponding with international requirements and decreasing latent impact on industries.

National Communication Commission (NCC) modified the Regulations Governing Fixed Network Telecommunications Businesses on Jan, 2008 to fulfill Taiwan’s World Trade Organization (WTO) accession commitments and to encourage new participants into telecommunication market. The new regulations include:

1. The new regulation reduces the applicable minimum paid-in capital to enhance the competition in telecommunications. After February 1, 2008, the applicable minimum paid-in capital is set forth below:
•The integrated network license: Sixty-four hundred million NTD.
•Local network license: The product of forty-eight hundred million NTD and local network operation weight.
•Long Distance Network License: Eighty hundred million NTD.
•International Network License: Eighty hundred million NTD.
•International Submarine Cable Leased-Circuit Business: Three hundred and twenty million NTD.

2. To harmonize the regulations of applicable minimum paid-in capital, NCC reduced the amounts of the performance bond for application of various categories of Fixed Network Telecommunications Business after February 1, 2008. The amounts are:
•Integrated network business: Six hundred and forty million NTD.
•Local network business: The product of four hundred and eighty million NTD and local network operation weight.
•Long distance network business: Eighty million NTD.
•International network business: Eighty million NTD.
•International submarine cable leased-circuit business: Thirty-two million NTD.

3. NCC lowered the regulations of capacity. After February 1, 2008 to lift restrictions on the entry into telecommunication market. An integrated network business applicant shall, within the effective period of the network construction permits, construct by itself a local network with a system capacity of no less than three hundred thousand subscribers’ lines, subscribers’ ports or a combination of both.

4. After February 1, 2008, as soon as the integrated network business applicant has completed its self-constructed local network with the network scale of a system capacity of more than forty-five thousand subscribers’ lines, subscribers’ ports or a combination of both as set forth in Paragraph 1, 2 of the Article 22, and the same has been examined and certified by DGT, the applicant may provide documents of the Paragraph 1 of the Article 23 to apply with DGT for a concession license.

Although the current Computer-Processed Personal Data Protection Law was enacted on 11th August 1995, it has begun attracting much attention recently because of a great many personal data breach cases. As the rapid development of information and communication technology and the well-operated business model of electronic commerce bring our daily life more convenience, many businesses try to collect and utilize a lot of personal data for marketing purposes. These practices not only seriously treated the privacy of individuals, but also violated the Computer-Processed Personal Data Protection Law. Therefore, a complete amendment is expected to eliminate the limitation on the applicable categories of non-governmental agencies, expend the protected data to non-automatically processed data. In addition, other sound measures employed in other countries for the protection of personal data, e.g., the data breach notification law and class action system designs etc, will also be considered in the Data Protection Law Draft Amendment (hereafter "Draft Amendment") .

Accordingly, Legislative Yuan has preliminarily passed the Draft Amendment on 19th May 2008. In addition to the change of the title of the law (from "Computer-Processed Personal Data Protection Law" to "Personal Data Protection Law"), the Draft Amendment will also include the following main topics：

1. The categories for non-governmental agency in the Draft Amendment are not remained again. If the Draft Amendment is passed, all juridical persons, natural persons and groups will be regulated.

2. According to Computer-Processed Personal Data Protection Law, the governmental agencies shall maintain the accuracy of personal data, but in the Draft Amendment, the governmental agencies and non governmental agencies are not only obligated to maintain the accuracy of them, they shall also make correction and supplement to personal data they stored.

3. In the draft amendment, the governmental agencies and non governmental agencies shall notify the subjects of personal data, when damages have been caused by the violation of any provisions of the law.

4. The Draft Amendment also regulates the marketing methods of non governmental agencies. According to the law, anyone shall be entitled to reject the use of their personal data for marketing of goods or services. As to the exercise of the right of rejection, in order to respect the right of data owners, the non governmental agencies shall immediately stop using the data as soon as they receive the notification from the data owners.

5. With regard to the resort of juridical measures, Draft Amendment also adopts the class action provision to help data breach victims claim for damages.

Finally, some unsettled provisions related to the total amount of compensation for each data misuse event, penalties and the simplification of burden of proof will be further discussed in the respective Committee of the Legislative Yuan of Taiwan.

35 U.S.C. §271(f) was legislated by the U.S. Congress in order to close the loophole addressed in the Deepsouth case of the U.S. Supreme Court. However, in recent years, when the American courts try to apply 35 U.S.C. §271(f) to the cases related to process claims or software code, they face serious difficulties. The problem of 35 U.S.C. §271(f) is that its description is based on the unique fact in the Deepsouth case, and therefore its application can not go beyond the limitations which is created by its own wording. To expand its scope is to give the unnecessary and dangerous extraterritorial effects to U.S. patent law, and to produce negative impacts on American economy. The territorial limitation of patent law is a doctrine which should not be easily dismissed; however, in the era of global economy, patent law should be flexible enough to deal with those cases in which the infringements can not be constrained in the boundary of one country. To develop the choice of law principle which looks into the economic effects of the infringement behavior is a way that patent law can utilize to deal with the problems caused by technological development and global economy.

<Source: Sen-Yin, Li, Discussion of the Problem of 35 U.S.C. §271(f) , Science & Technology Law Review Vol. 20 No. 4, April 2008, p.p. 23~39.>

Under the age of the innovation be valued by the global advanced countries, after Taiwan economy conversing to become the industrial innovation-driven along with the economical growth power, how to utilize the energy of R&D to drive promotion of the industrial competitiveness continually, the policy of innovative and industrial R&D is acting a pioneer role. At present, the "The Science and Technology Basic Law" has become the main and fundamental law for various government departments, the Department of Industrial Technology(DoIT) of MOEA according to this law to introduce the Technology Development Projects(TDP) with the demands of industrial development; Such as emphasizes on the development of foresight, critical and priority technologies, and increase the Innovative Technology Applications and Services Program specially to induce the industrial technology implied in the service industry, and improve the added-value of the service industry. DoIT also focuses on the critical technology of the next generation industry development, in order to carry on the plan of the R&D foresight. In addition, DoIT impels the multiplicative utilizing for the achievement of the TDP and set up the office of the value creation, to inspect and modify the implement of the TDP for moving up the R&D performances. Further, for the balance of the industry resources and the creating the supply chain, encourages domestic, outside enterprises to carry on the innovative technology and applied research, and establishment of innovative R&D centers in Taiwan and so on. With forecast of Taiwan’s future, we need to take the innovation as the core criterion, via the practice of the industrial technology policy, carry the unprecedented and constitutive conversion out diligently, then animate the industrial competitiveness moving up unceasingly in the global knowledge-based economy.

<Source: Shia-Li, Chou & Shiou-Ling, chiou, The Policy of Innovative R&D and Promotion for Industrial Competitiveness, Science & Technology Law Review Vol. 20 No. 5, May 2008, p.p. 4~14 .>

Rapid advances in biotechnology and medical science have made important progress in the areas of disease treatment, food production, environment and life quality. The potential economical and social benefits of biotechnology attract the attention of government, academia and business community, and made numerous countries to position biotechnology industry as a strategic industry.

The Taiwanese government has a development plan for the local biotechnology industry, which is considered an emerging strategic industry. After more than two decades of development, Taiwan has established its own biotechnology industry. The recent passage of "The Biotech and Pharmaceutical Industry Development Statute" should facilitate future development of biotechnology and pharmaceutical industry in Taiwan. This article studies the current status and future perspectives of biotechnology industry in Taiwan. It also examines current government policies in promoting the industry, and proposes key directions and strategies for the Taiwanese biotechnology industry to reach a scale of trillion NT dollars in 2015.

<Source: Chau-Chiun, Jang, Opportunities and Policy Trend for Taiwan Biotechnology and Pharmaceutical Industries in 2015, Science & Technology Law Review Vol. 20 No. 5, May 2008, p.p. 28~38 .>

Since the provisions of Article 8 and Article 9 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement), regarding with Non-actionable Subsidies, shall not apply after a period of five years, beginning with the date of entry into force of the WTO Agreement, and its application did not be extended by the SCM Committee in 2000, and the Peace Clause of Article 7 (and Article 13) of the Agreement on Agriculture, relevant to the Green Box and non-actionable subsidies, has be expired after a nine-year period commencing of this Agreement in 2004, consequently there is no any non-actionable subsidy provision existing or applicable to World Trade Organization (WTO) Members for justifying the adoption of their assistance or grants for research and development activities conducted by firms. From then on, government R&D assistance and grants offered to domestic companies became actionable in the WTO. And, in fact, the first dispute to challenge other Member’s R&D subsidies has been indeed occurred in the WTO. The famous Large Civil Aircraft Dispute between the U.S. and the E.U. has been submitted in 2004. Although R&D subsidies are actionable at present, and the relevant dispute actually happened, it seems that most Members still keep and do not changed their R&D assistance and grants for domestic enterprises until now. In Taiwan, our government also continuously offers the Science and Technology R&D Grants for Enterprises. But it might be questionable whether these kinds of Grants for Enterprises’ R&D activities awarded by our government are consistent with the SCM Agreement. According to this concern, this paper will start to make a preliminary analysis and review of the above.

<Source: Yi-Ching, Yang, Government R&D Grants for Domestic Enterprises and the SCM Agreement, Science & Technology Law Review Vol. 20 No. 5, May 2008, p.p. 52~64. >

Faced with globalization competition, many countries have made their own overall and comprehensive arrangement for future industrial development. In this context, it is absolutely essential and urgent for Taiwan to do a proper decision-making for mid- to long-term development in order to get the maximum benefit for the economy and whole society. This paper clarifies the phenomenon of globalization and its influence at beginning. Then, it analyses the interaction between new considerations and existing regulations. At last, it provides several explicit suggestions to the policy-maker.

<Source: Yu-ting, Chen, Study on the Regulatory Framework of R&D Results, Science & Technology Law Review Vol. 20 No. 6, June 2008, p.p. 25~41. >

There is difference between geographical indication (GI) and trademark, the subjects protected by the geographical indication include agricultural and food-stuffs. All goods and service falling within the Classes 1 to 45 of the Classification are protected by trademarks. The licensing of the geographical indication is impossible for the product designed, though anyone may register the trademark for goods and license it. The geographical indication will not become generic names, it is different from trademark. No use needed before trademark application, however, it is implicit that the geographical indication must be used before it qualifies for protection. The GI may conflict with the trademark under certain situation. Under the current Taiwan regulation, there is no any protection for continued existence of trademark acquired in good faith and the homonymous geography indication. The purpose of the article is address on the accommodation between the geographical indication and trademark.

<Source: Kuo-Ching, Chiang , Accommodation for Geographical Indication under International Trade Aspect, Science & Technology Law Review Vol. 20 No. 6, June 2008, p.p. 42~62. >