A post-termination restrictive covenant for non-competition restricts an employee from joining the employer's competitor or conducting business in competition with the employer following termination of employment. The employee is usually required to provide such a covenant on being hired, making it difficult for the employee to decline. As the legality of such a covenant was controversial, when the Labour Standards Act was revised in 2016, a new article was added to regulate it.
An employer may terminate an employment contract with notice or payment in lieu of notice and provide the appropriate severance payment if an employee is confirmed to be incompetent to perform the work assigned to him or her. However, employers may not terminate an employment contract if the employee is on maternity leave or suffering from an occupational injury or disease while working for the employer.
The Legislative Yuan recently passed a number of amendments to 10 provisions under the Labour Standards Act. The amendments took effect on January 1 2017 (except the required rest time between shifts, which is expected to take effect after one year) and will have a significant effect on costs and human resources. Key points of the amendments include the implementation of a five-day working week, a sharp increase in wages for working on a rest day and a reduction in national holidays.
Departing from the opinion of the Intellectual Property Office, the Supreme Court recently held that the end date of foreign clinical trial periods in patent term extension applications should be the report date, not the study completion date. The court reasoned that the results of a clinical trial cannot be obtained immediately after the study is completed. Meaningful results can be obtained only after professional analysis and data processing.
Under Article 97 of the Trademark Act, maliciously selling and importing counterfeits is subject to criminal liability. However, defendants are liable only if they act with malicious intent to sell and import counterfeits – where no malicious intent is proved or where it is shown that the defendant simply acted recklessly, they will not be held liable. A recent IP Court decision has clarified the evidentiary requirements for determining criminal liability where the counterfeiting involves non-traditional trademarks.
The Intellectual Property Court recently addressed the knowledge and technical level of a person having ordinary skill in the art (PHOSITA). In a decision which diverged from a Supreme Administrative Court judgment, the Intellectual Property Court declared that the examination of a PHOSITA's knowledge and technical level is considered substantial only when the parties raise a claim thereon and if such a determination would affect the judgment.
In patent disputes, claim construction and a person having ordinary skill in the art determination often become the focus of the parties' arguments. Based on the principle of good faith and the doctrine of estoppel, it is common for one party to quote statements made by the other party outside the litigation proceedings as a basis for interpreting the claims or identifying ordinary skill. The Supreme Administrative Court recently assessed whether such statements may be used as evidence.
Under the Patent Act, utility model patents are examined using a formality examination system; the Taiwan Intellectual Property Office is not required to perform a substantive examination of patentability. However, as patent rights are granted without substantive examination, to prevent patentees from IP rights abuse, the Patent Act stipulates that when exercising a utility model patent, the patentee must not issue a warning without presenting a technical evaluation report.
The National Communications Commission (NCC) recently responded to comments from mobile network operators and equipment suppliers in a public consultation on 5G spectrum planning and auction preparation. The NCC confirmed that, in addition to the 3.4GHz to 3.6GHz bands, the 28GHz, 1,700MHz to 1,900MHz and 700MHz to 800MHz bands are expected to be released for 5G use and will likely be made available through spectrum auctions.
The National Communications Commission (NCC) has initiated a public consultation on 5G spectrum planning and auction preparation. Industry stakeholders and interested parties are invited to give comments in written form by 29 June 2018. NCC Chair Nicole Chan stated that the commission will be submitting its final analysis of the public consultation to the Executive Yuan in July 2018. The premier will then issue a further decision on 5G spectrum.
The National Communications Commission (NCC) released its 2017 Taiwan Communications Market Report in April 2018. The report disclosed the progress being made in preparation for the 5G spectrum auction, during which the NCC will identify that the 28 gigahertz (GHz) band, as well as the 3.4GHz and 3.6GHz bands, should be available for auction in 2020, aiming for large-scale 5G application.
Chunghwa Telecom recently announced that it will make a 5G pre-commercial system available in Taipei in 2020. The National Communications Commission has welcomed the move. It has also stated that its legislative proposal on the Telecommunications Act will take a proactive approach in responding to the significant need for flexible frequency sharing and network use.
The National Communications Commission (NCC) recently issued a warning regarding the key reinstallation attack and urged network operators and equipment providers to fix this unprecedented flaw in WiFi protection that has left almost all home routers at risk of being hacked. The NCC advised subscribers to avoid sending confidential or sensitive personal data via WiFi connections and to use 4G mobile internet access instead.