The Development of Non-Drama TV Programs in Taiwan and the Protection of Intellectual Property Rights
The Development of Non-Drama TV Programs in Taiwan and the Protection of Intellectual Property Rights
With the advancement of an era of digital content, the industrial structure of the audio-visual content industry has gradually changed. The production and sales channels of audio-visual content have appeared to trend toward diversification. Emerging content channels or new media have replaced traditional TV stations. The transmission speed of digitized content is faster than the traditional media, which has become an output opportunity for the content of Taiwan in the international market. In the field of drama programs, there have been cases of successful global output, and international cooperation and export models have been gradually discovered. By contrast, non-drama TV programs of Taiwan still remain in the traditional production mode in lack of creation of new content or funds, as well as talents for production and international marketing, which leads to a vicious circle of industrial stagnation or even regression.
1. Problems with domestic non-drama TV programs
Funding is the first issue that needs to be resolved. "Due to the lack of money, the only thing that can be done is producing programs that no one wants to watch." Such a condition exists day after day that causes the entire non-drama programs to be depressed, and few people are willing to invest. By contrast, in China or South Korea, the linkage of its variety shows brings about the development of the content industry, and the benefits are amazing. The willingness to spend money on the investment at its initial stage is an essential element of success. However, if there is no successful case, it may not be easy to solely rely on Taiwanese private funds.
As far as the technical level of TV program production is concerned, it is particularly important to modelize TV programs if they are to be exported. The market transaction of international TV program formats has existed for many years, but the object of the transaction is the core content and production process of TV programs, that is, the TV program bible. For non-drama TV programs of our country, if it needs to sum up the core of the program in one sentence, it is not impossible to achieve. However, it still lacks the core content such as the famous tv show "THE Voice" that is sufficient to attract people. In addition, in terms of production, how to edit as well as integrate the stage and supporting design into the shooting so to present attractive programs is the relatively lacking part in TV programs of our country.
As for the cultivation of talents, Taiwan has yet rarely relevant talents who are able to research, develop, and independently write the TV program bible, as well as do marketing. By contrast, China has achieved remarkable results in TV programs in recent years. They have some consultant companies that specialize in writing a TV program bible for production companies. Their R&D personnel record details by following and observing the directors, producers, and photographers, of which the records gradually become a TV program bible. Some talents in China have mastered the art of writing TV program formats. They can even directly disassemble well-known foreign formats and rewrite them as Chinese versions for production, which has achieved success.
2. Overview of international TV program formats
Taking a broad view of the status of foreign TV program formats, it is found that the output of creative development is not in the countries with big entertainment industries such as the United States, the United Kingdom, and France, but in small European countries such as the Netherlands and Israel, which have a large number of output of TV program formats. The Netherlands and Israel are not countries where the television industry is prosperous. However, their TV program output occupies an important position in the global market. Some programs have even produced more than 1,000 episodes in the world, with the output to countries including the United States, China and others. Similar to Taiwan, Netherlandish and Israeli TV programs are also faced with great limitations in production funds due to the small domestic market. However, many TV programs have been created by relying on the novel program content and taking full account of the needs of the international market.
In the international trade market of TV program formats, if you intend to successfully output a program, it not only contains a novel main idea, but also covers production and viewing. The output carrier of TV program formats is the "TV Format Bible". Its content includes various links of program rundown, personnel settings, camera lenses, sound effects and lighting, etc. As long as the program has a fixed existing model, no matter who plays the roles in the program, the quality of the program can be kept stable. This kind of production of non-drama TV programs according to the TV Format Bible is called TV Format.
3. Protection of huge business opportunities of formats: preservation and authorization management of intellectual property rights
The core value of formats often lies in the creative part of the content. How to effectively preserve the creativity and at the same time to claim the rights are of the most concern by ideators, and the carrier of modelizing creation is the "TV Format Bible".
The writing of the "TV Format Bible" is based on the thinking of TV Format structure. At the creative stage, the core content will be integrated into the production level, including how to set up the lighting and the arrangement of the camera to achieve the entertainment effect of the creative core content and other details. However, the value of the "TV Format Bible" comes from the ideation of creativity, and whether creativity is to be protected by law has been controversial since always. Judging from the results of the current judgments on disputed cases concerning the TV Format, the more specific the TV Program Bible is written, the higher chance it has to be protected.
A successful variety show not only can bring about the domestic and foreign income from the show itself, but associated derivatives such as music, tourism, and peripheral products may also be able to obtain huge business opportunities due to the broadcast of the program. Therefore, although the TV Program Format is centered on its content, it actually involves issues of industrial management such as human resources, labor relations, corporate governance, taxation, fundraising, bankruptcy procedures, economic systems, and professional ethics. In addition, in aspects of commerce, marketing and management aspects, matters such as the establishment of the production team, the production process management, the acquisition and use of creation funds, and valuation are all covered in the operation of formats.
Introduction to Essential Data Governance and Management System(EDGS) 2022/12/30 I. Background Along with organizations face the industrial, social and economic level of Digital Transformation trend brought by the development of emerging technology or the occurrences of disasters or emergencies(such as COVID-19), and so on. Inducing the increasing demand for transformation of digital governance and management. Including the board of directors and the top managements’ decision making, supervision to internal audit, internal control etc. It is necessary to establish and implement the digitized management measure of content or process step by step. Strengthening the reality, integrity and full disclosure of data, in order to improve the efficiency of organizational decision making, execution, supervision and management. Although implementing the digitization process, brings convenience and efficacy to the organization, accompanied by risks. Digital data has characters of being easy to modify and spread. This often results in difficulty for the original version owner in proving the originator’s identity and then impacts rights protect. Additionally, when cooperating with others, the organizations may provide essential digital data to others, or receive others’ essential digital data. When data breaches or controversies occur, it is required to have measures assisting in the identification or prove the origin of the data. In order to delineate the responsibilities and enhance mutual trust. Essential Data Governance and Management System(hereinafter referred to as, EDGS) is a management model which is to be introduced at the discretion of each organization. Looking forward to improve the degree of the ability in organizations’ digital and governance level progressively. Starting to improve the protected process of the digital data in the first place, reinforcing the long-term preservation of validity of the essential digital data. In order to guarantee the evidence capacity and reinforce the probative value by the time litigations has been instituted or the related competent authority investigates. II. Setting Objectives The purpose of EDGS is to help organizations consolidate with existing internal auditing, internal control or other management process and then implement tweaks that establish an organizations’ essential data governance and management system that meets the requirements of EDGS. In order to attain the following benefits(as shown in Figure 1 below): a. Improve the digitalization level of governance and management in internal control, internal auditing or surveillance. b. Improve organizations’ cooperation, trust and the chance of digital transformation. c. Reinforce organizations to identify and manage the self-generated, provided or received external digital data. d. Reinforce organizations’ validity of evidence presented in litigation or the inspection certification of competent authority. Figure 1: Setting Objectives of EDGS III. Scope of Application EDGS is designed to be applicable to all organizations, regardless of their type, size, and the products or services they provide. In addition, the requirement of EDGS are centered on the organizations’ essential data governance and management system process (as shown in Figure 2 below). The so-called organizations’ essential data governance and management system process refers to from the digital data process of generation, protection and maintenance to the digital evidence preservation information process of acquisition, maintenance and verification by setting management objectives in accordance with the management policies established by the organization. Figure 2: The Conceptual Flow Chart for the Organizations’ Essential Digital Data Governance and Management System Process IV. Process of Application EDGS encourages organizations to link and reinforce the existing “process management” approach and “PDCA management” cycle(as shown in Figure 3 below) in developing, implementing and improving their essential data governance and management system. Figure 3: The “PDCA management” Cycle of EDGS V. Table of Contents Chapters 0 to 4 of EDGS are the description of the system structure, scope of application, definition of terms and consideration factors; Chapters 5 to 10 are important management items. 0. Introduction 0.1. General Description 0.2. Target 0.3. Process Management 0.4. Management Cycle 0.5. Setting Objectives 0.6. Compatibility with other management systems 1. Scope of Application 2. Version Marking 3. Definition of Terms 3.1 Organization 3.2 Digital record 3.3 Identification Technology 3.4 Metadata 3.5 Hash Function 3.6 Hash Value 3.7 Time-Stamp 4. Organization Environment 4.1 Internal and External Issues 4.2 Stakeholders 5. Management Responsibility of Digital Governance and Management 5.1 Management Commitment 5.2 Management Policy 5.3 Management Objective Planning 5.4 Management Accountability and Communication 6. System Planning 6.1 Basic Requirements 6.2 Response to Risks and Opportunities 6.3 Change Planning 7. Support 7.1 Resources 7.2 Personnel 7.3 Equipment or System Environment 7.4 Communication Channels 8. Practice Process of Essential Digital Data Governance and Management 8.1 Generation, Maintenance and Protection of Digital Data 8.2 Acquisition, Maintenance and Verification of Digital Evidence Preservation Information 9 Performance Evaluation 9.1 Basic Requirements 9.2 Data Analysis 9.3 Internal Audit 9.4 Management Review 10 Improvement For the full text of the EDGS(Chinese Version), please refer to： https://stli.iii.org.tw/publish-detail.aspx?d=7198&no=58
Taiwan Intellectual Property Survey Report 2023Taiwan Intellectual Property Survey Report 2023 2024/06/27 Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Institute for Information Industry has conducted the survey of “The Intellectual Property Survey Report” to listed companies since 2012. The Intellectual Property Survey Report 2023 on Taiwan's Listed and Over-the-Counter Companies was released in February 2024. Among the 331 publicly listed companies surveyed in 2023, the information technology sector had the largest representation, accounting for 44% (145 companies). This was followed by the manufacturing sector at 27% (90 companies), the pharmaceutical and livelihood sector at 18% (58 companies), and the industrial and commercial services sector at 11% (38 companies). Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig. 1 types of industry Based on the survey result, three trends of intellectual property management for Taiwanese enterprises have integrated with detail descriptions as below. Trend 1: Positive Growth in Intellectual Property Awareness and Intellectual Property Dedicated Department/Personnel, Budget and Projects 1. Taiwanese enterprises believe that intellectual property plays an important role More than 70% of companies believe that intellectual property can enhance product/service value, help profitability, and protect research results/core competitiveness. Specifically, 72% believe that intellectual property can enhance product/service value and help profitability, and 78% believe it can protect research results/core competitiveness. Additionally, 65% of companies believe that intellectual property can protect and enhance brand value, and 65% believe it can reduce the likelihood of disputes and infringements with others. Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig.2 The benefit of intellectual property for the company 2.Taiwanese enterprises maintain investment in the dedicated department and full time personnel for intellectual property 33% of listed companies set up full time personnel for intellectual property and over 32% of those have established dedicated department to handle its business that is higher than 35% in 2023. Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig.3 Department or personnel for intellectual property by year 3. Taiwanese enterprises plan budget for intellectual property each year 79% of enterprises have invested a certain amount of funds this year in acquiring, maintaining, and managing intellectual property. By industry, the information technology and pharmaceutical/livelihood sectors have a higher proportion of investment in related expenses, both exceeding 80% Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig. 4 fixed budget for intellectual property each year Trend 2: Taiwanese enterprises are willing to disclose their intellectual property information to the public, which can have a positive impact on the company. 1. Enterprises have a positive attitude towards disclosing intellectual property information. 72% of enterprises believe that disclosing intellectual property helps external parties objectively assess the company's value and competitiveness. This is followed by highlighting brand value (52%) and improving the internal management and control of intellectual property. By industry category, 77% of manufacturing companies believe it helps external parties objectively assess the company's value and competitiveness, which is higher than other industries. In the business services sector, 81% believe it helps highlight brand value, a significantly higher proportion. Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig. 5 Benefits of disclosing intellectual property management information for enterprises 2. The main channels for public disclosure are company annual reports, sustainability reports, and intellectual property management plans The proportion of companies disclosing intellectual property plans in annual reports reaches 72%. Additionally, approximately 39% and 38% disclose in sustainability reports or intellectual property management plans, respectively. The proportion disclosed in company marketing and promotional materials is 29%, while the proportion in English-language sustainability reports is 20%. Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig. 6 Channels for publicly disclosing corporate intellectual property management information Trend 3: Taiwanese enterprises use various types of intellectual property rights to protect their core competitiveness. 1. Trade secrets are considered crucial by enterprises but are less commonly owned forms of intellectual property Enterprises consider trademark rights, invention patents, utility model patents, and trade secrets to be more important, each with an importance score above 4. Design patents and copyrights are considered somewhat less important, each with an importance score of 3.8. However, there is a gap between the importance and the ownership rates of some types of intellectual property. The importance and ownership rates are consistent for trademarks, with an importance score of 4.5 and an ownership rate of 88%. Patents have an importance score of 4.7 and an ownership rate of 70%. Trade secrets have an importance score of 4.6 and an ownership rate of 49%. Copyrights have an importance score of 3.8 and an ownership rate of 30%. Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig. 7 Owned and Importance of Various Intellectual Properties 2. The priority of using intellectual property rights varies across different industries Patents are used to protect important assets by the largest proportion of companies, about 86%. This is followed by trademarks at 77%, trade secrets at 66%, and copyrights at 33%. By industry, the order is consistent in information services, manufacturing, and pharmaceutical/livelihood industries: patents, trademarks, trade secrets, and copyrights. In the business services sector, the order is trademarks, trade secrets, patents, and copyrights. Data source: Innovation & Intellectual Property Center, Science & Technology Law Institute (STLI), Taiwan Intellectual Property Survey Report 2023. Fig.8 which type of intellectual property rights do companies use to protect important assets The complete survey report can be accessed in the Taiwan Intellectual Property Management System (TIPS) website. The download link is https://www.tips.org.tw/body.asp?sno=BGCHDC#460
Recent Federal Decisions and Emerging Trends in U.S. Defend Trade Secrets Act LitigationI. Introduction The enactment of the Defend Trade Secrets Act of 2016[1] (the “DTSA”) marks a milestone in the recent development of trade secret law in the United States (“U.S.”).[2] Recent federal decisions and emerging trends in DTSA litigation regarding the following issues deserve the attention of Taiwanese companies who might be involved in DTSA litigation in U.S. federal courts (“federal courts”): (1) whether the DTSA displaces any other civil remedies provided by the existing trade secret laws; (2) whether a plaintiff should pay attention to any pleading standard when bringing a DTSA claim in federal court; (3) whether a federal court will easily grant an ex parte application for seizure order under the DTSA (an “ex parte seizure order”); and (4) whether the DTSA applies to trade secret misappropriations that occurred before the DTSA came into effect. This article provides insights into these developments and trends, and concludes with their implications at the end. II. The DTSA does not displace any other civil remedies provided by the existing trade secret laws, and federal courts may nonetheless turn to pre-DTSA laws and decisions for guidance The DTSA states that it does not “preempt” or “displace” any other civil remedies provided by other federal and state laws for trade secret misappropriation.[3] Prior to the enactment of the DTSA, the civil protection and remedies of trade secrets in the U.S. have traditionally been provided under state laws.[4] The DTSA provides federal courts with original jurisdiction[5] over civil actions brought under the DTSA, giving trade secret owners an option to litigate trade secret claims in federal courts.[6] As a result, the DTSA adds a layer of protection for trade secrets and creates a federal path for plaintiffs to pursue civil remedies.[7] Some commentators point out that federal courts, when hearing DTSA claims, construing DTSA provisions or analyzing DTSA claims, oftentimes turn to state laws and decisions existing prior to the enactment of the DTSA for guidance.[8] Various decisions show that federal courts tend to look to local state laws and pre-DTSA decisions when hearing DTSA claims or making decisions.[9] This suggests that pre-DTSA trade secret laws and prior decisions remain an indispensable reference for federal courts. III. A plaintiff should pay careful attention to the plausibility pleading standard when bringing a DTSA claim in federal court A plaintiff's pleading in his complaint must satisfy the plausibility pleading standard when the plaintiff brings a DTSA claim in federal court.[10] Otherwise, the plaintiff's complaint may be dismissed by the federal court.[11] Filing a motion requesting dismissal of the plaintiff's complaint[12] on the grounds of the plaintiff's failure of stating plausible claims for relief is thus a defense that a defendant may employ to defeat the plaintiff's claim in the early stage.[13] The DTSA opens the door of federal courts to trade secret plaintiffs to pursue civil remedies,[14] but the DTSA does not “guarantee unfettered access to the federal courts.”[15] When filing a DTSA lawsuit in federal court, a plaintiff must state “the grounds for the court's jurisdiction,” the plaintiff's claims (entitlement to relief), and the plaintiff's “demand for the relief sought” in his complaint.[16] The claim and statement pled by the plaintiff in his complaint must meet the “plausibility” threshold.[17] In other words, at the pleading stage, a plaintiff should plead facts sufficiently demonstrating that all prerequisites of his claim (e.g., jurisdiction and venue,[18] elements of a claim required by the DTSA,[19] etc.) are satisfied when bringing a DTSA claim in federal court.[20] For instance, in addition to claiming the existence of his trade secret, a plaintiff should state how his trade secret was misappropriated through improper means.[21] However, in the context of trade secrets, the plausibility pleading standard can be challenging to a plaintiff because it is never easy to balance between “satisfying the required pleading standard” and “avoiding disclosing too much information about the trade secret in a pleading.”[22] Let's take pleading the existence of a trade secret as an example. Under the plausibility pleading regime, a plaintiff is required to plead all relevant facts of trade secret (elements)[23] defined by the DTSA to affirmatively prove the existence of his trade secret.[24] In other words, a plaintiff needs to state sufficient facts indicating that the information in dispute has economic value while not being known to the public, and reasonable steps have been taken to maintain the secrecy of that information,[25] all of which plausibly suggest that the information in dispute qualifies as a trade secret.[26] Federal courts do not require a plaintiff to disclose his trade secret in detail in his complaint.[27] Nevertheless, a plaintiff should be able to provide the “general contour” of the alleged trade secret that he seeks to protect.[28] Federal courts would be reluctant to see that a plaintiff, merely “identify[ing] a kind of technology” or “point[ing] to broad areas of technology,” or barely asserting that the misappropriated information is confidential, then “invit[ing] the court to hunt through the details in search of items meeting the statutory definition.”[29] Instead of simply alleging that the subject matter at issue involves a trade secret, a plaintiff's complaint should contain descriptions identifying the plaintiff's trade secret.[30] For instance, in his pleading, a plaintiff has to tell what information is involved and what efforts have been made to maintain the confidentiality of such information.[31] For further example, a plaintiff should provide documents or information constituting the alleged trade secret rather than merely listing general topics or categories of information.[32] IV. Obtaining a DTSA ex parte seizure order is challenging as federal courts tend to take a conservative approach to prevent abuse of this ex parte seizure remedy Since the DTSA came into effect, federal courts rarely grant an ex parte application for seizure order under the DTSA.[33] The provision for ex parte seizure orders is a controversial part of the DTSA[34] as it allows a court, upon ex parte application and if all DTSA requirements are met, to issue a civil order “for the seizure of property necessary to prevent the propagation or dissemination of the trade secret.”[35] So far federal courts have been hesitant to order DTSA ex parte seizures and are giving great deference to the statutory text of the DTSA seizure order provision.[36] Only when a federal court finds it “clearly appears from specific facts” that certain requirements are met[37] and only in “extraordinary circumstances”[38] may a federal court issue an ex parte seizure order.[39] When being confronted with an ex parte application for seizure order under the DTSA, federal courts tend to favor a conservative approach to prevent the abuse of this ex parte seizure remedy.[40] If any alternative equitable relief is available to achieve the same purpose, federal courts will likely find it unnecessary to issue an ex parte seizure order.[41] In addition, a plaintiff's mere assertion that the defendant, if given notice, would destroy evidence or evade a court order, but without showing that the defendant “had concealed evidence or disregarded court orders in the past,” will likely be insufficient to persuade the court to issue an ex parte seizure order.[42] Furthermore, federal courts will decline to order an ex parte seizure if a plaintiff fails to meet his burden demonstrating that the information in dispute constitutes a trade secret.[43] All of the foregoing suggests that one will likely face an uphill struggle in federal court when seeking to obtain an ex parte seizure order under the DTSA.[44] Though federal courts sparingly order DTSA ex parte seizures, to date at least one federal court did issue a published DTSA ex parte seizure order, which appeared in Mission Capital Advisors, LLC v. Romaka.[45] In Romaka, the defendant allegedly downloaded the plaintiff's client and contact lists to the defendant's personal computer without the plaintiff's authorization; the plaintiff filed an ex parte motion seeking to seize some properties containing the plaintiff's trade secrets or enjoin the defendant from disclosing that information.[46] During the trial, the defendant neither acknowledged receipt of the court's prior orders[47] nor appeared before the court as ordered,[48] all of which together with other facts in Romaka convinced the court that other forms of equitable relief would be inadequate and the defendant would likely evade or otherwise disobey the court order.[49] After reviewing the facts of this case along with DTSA requirements item by item, the Romaka court found it clearly appears from specific facts that all requirements for an ex parte seizure order under the DTSA are met,[50] and thus, issued a said seizure order as requested by the plaintiff.[51] Romaka gives us some hints about what circumstances would cause a federal court to order a DTSA ex parte seizure.[52] This case tells us that evading or disregarding court-mandated actions is likely demonstrating to the court a propensity to disobey a future court order and may probably increase the likelihood of meriting a DTSA ex parte seizure order.[53] Moreover, echoing other decisions rendered by federal courts, Romaka reveals that federal courts tend to approach ex parte seizure order applications in a gingerly way.[54] Federal courts take a conservative approach toward ex parte seizure order to curtail abuse of such order[55] does not mean that no injunctive relief is available to victims of trade secret misappropriation. Injunctive relief provided by other federal laws or state laws[56] is nonetheless available to those victims.[57] As long as the facts of the case before the court meet all elements required for injunctive relief, it is not rare for federal courts to grant injunctive relief other than an ex parte seizure order.[58] V. The DTSA might apply to a pre-DTSA trade secret misappropriation that continues after the DTSA became effective The DTSA expressly states that it applies to any trade secret misappropriation that “occurs on or after the date of the enactment” of the DTSA.[59] Therefore, the DTSA does not apply to trade secret misappropriations that began and ended before the effective date of DTSA.[60] In practice, it is possible that a federal court will dismiss a plaintiff's DTSA claim if the plaintiff fails to state that the alleged trade secret misappropriations (either in whole or in part) took place after the DTSA came into effect.[61] Federal courts have begun addressing or recognizing that the DTSA might apply to trade secret misappropriations that occurred prior to and continued after the enactment date of the DTSA.[62] However, a plaintiff should “plausibly” and “sufficiently” plead in his claim that some parts of the alleged continuing misappropriation of trade secrets occurred after the DTSA became effective.[63] Some critics opine that, in the case of a continuing trade secret misappropriation that took place before and continued after the DTSA was enacted, the available recovery shall be limited to “post-DTSA misappropriation.”[64] By being mindful of the foregoing, maybe someday a plaintiff will bring a DTSA claim for a pre-DTSA misappropriation of trade secrets that continues after the DTSA is in effect.[65] In this kind of litigation, one should pay attention to whether the plaintiff has plausibly and sufficiently alleged the part of misappropriation that occurred after the enactment date of the DTSA.[66] When a plaintiff fails to plausibly and sufficiently alleges the post-DTSA misappropriation part, the defendant stands a chance to convince the court to dismiss the plaintiff's claim.[67] VI. Conclusion To sum up, recent federal decisions and emerging trends in DTSA litigation provide the following implications to Taiwanese companies who might be involved in DTSA litigation in federal court: 1. The DTSA does not preempt or displace any other civil remedies provided by other federal laws and state laws.[68] Rather, the DTSA adds a layer of protection for trade secrets and creates a federal path for plaintiffs to pursue civil remedies.[69] Federal courts tend to turn to local state laws and pre-DTSA decisions for guidance when hearing DTSA claims or making decisions.[70] Do not ignore pre-DTSA trade secret laws or prior decisions as they remain an indispensable reference for federal court. 2. A plaintiff's pleading must satisfy the plausibility pleading standard when the plaintiff brings a DTSA claim in federal court.[71] Whether the plaintiff's pleading satisfies the plausibility pleading standard is likely one of the hard-fought battles between the parties in the early stage of the litigation. The plausibility pleading regime does not require a plaintiff to disclose his trade secrets in detail in his complaint.[72] However, a plaintiff should be able to describe and identify his trade secrets.[73] 3. Seeking to secure a DTSA ex parte seizure order in federal court will likely face an uphill battle.[74] Obtaining alternative injunctive relief would be easier than obtaining a DTSA ex parte seizure. When being confronted with an ex parte application for seizure order under the DTSA, federal courts tend to favor a conservative approach to prevent the abuse of this ex parte seizure remedy.[75] Notwithstanding the foregoing, as long as the facts of the case before the court meet all elements required for injunctive relief, it is not rare for federal courts to grant injunctive relief other than an ex parte seizure order.[76] 4. The DTSA might apply to trade secret misappropriations that occurred prior to and continued after the enactment date of the DTSA.[77] When a DTSA litigation involves this kind of continuing misappropriation, one of those hard-fought battles between the parties during litigation will likely be whether the plaintiff has plausibly and sufficiently stated the part of misappropriation that occurred after the DTSA came into effect.[78] When a plaintiff fails to plausibly and sufficiently alleges the post-DTSA misappropriation part, the defendant stands a chance to convince the court to dismiss the plaintiff's claim.[79] [1] The Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, 130 Stat. 376 (May 11, 2016) (mostly codified in scattered sections of 18 U.S.C. §§1836-1839 [hereinafter the “DTSA”]. [2] Mark L. Krotoski, Greta L. Burkholder, Jenny Harrison & Corey R. Houmand, The Landmark Defend Trade Secrets Act of 2016, at 3 (May 2016); Bradford K. Newman, Jessica Mendelson & MiRi Song, The Defend Trade Secret Act: One Year Later, 2017-Apr Bus. L. Today 1, 1 (2017). [3] 18 U.S.C. §1838. [4] S. Rep. No. 114-220, at 2 (2016) [hereinafter “S. Rep.”]; Kaylee Beauchamp, The Failures of Federalizing Trade Secrets: Why the Defend Trade Secrets Act of 2016 Should Preempt State Law, 86 Miss. L.J. 1031, 1033, 1045 (2017); Zoe Argento, Killing the Golden Goose: The Dangers of Strengthening Domestic Trade Secret Rights in Response to Cyber-Misappropriation, 16 Yale J. L. & Tech. 172, 177 (2014); James Pooley, The Myth of the Trade Secret Troll: Why the Defend Trade Secrets Act Improves the Protection of Commercial Information, 23 Geo. Mason L. Rev. 1045, 1045 (2016); John Conley, New Federal Trade Secret Act and Its Impact on Life Sciences, Genomics L. Rep. (Aug. 12, 2016), https://www.genomicslawreport.com/index.php/2016/08/12/new-federal-trade-secret-act-and-its-impact-on-life-sciences/; Newman, Mendelson & Song, supra note 2, at 1. [5] 18 U.S.C. §1836(c). [6] Krotoski, Burkholder, Harrison & Houmand, supra note 2, at 7; Beauchamp, supra note 4, at 1033, 1045, 1072; Lily Li & Andrea W. Paris, Help! What Are My (Immediate) Defenses to a Federal Trade Secret Claim?, 58-Sep Orange County Law. 52, 52 (2016); Newman, Mendelson & Song, supra note 2, at 1. [7] Conley, supra note 4. [8] William M. Hensley, Post-Enactment Case Law Developments under the Defend Trade Secrets Act, 59-Jul Orange County Law. 42, 44 (2017); Robert B. Milligan & Daniel Joshua Salinas, Emerging Issues In the Defend Trade Secrets Act's Second Year, Seyfarth Shaw LLP: Trading Secrets (June 14, 2017), https://www.tradesecretslaw.com/2017/06/articles/dtsa/emerging-issues-in-the-defend-trade-secrets-acts-second-year/; Jeffrey S. Boxer, John M. Griem, Jr., Alexander G. Malyshev & Dylan L. Ruffi, The Defend Trade Secrets Act – 2016 In Review, Carter Ledyard & Milburn LLP (Jan. 19, 2017), http://www.clm.com/publication.cfm?ID=5579; Rajiv Dharnidharka, Andrew D. Day & Deborah E. McCrimmon, The Defend Trade Secrets Act One Year In – Four Things We've Learned, DLA Piper (May 30, 2017), https://www.dlapiper.com/en/us/insights/publications/2017/05/defend-trade-secrets-act-four-things-learned/; Joshua R. Rich, The DTSA After One Year: Has the Federal Trade Secrets Law Met Expectations?, McDonnell Boehnen Hulbert & Berghoff LLP, Vol. 15 Issue 3 Snippets 6, 7 (Summer 2017). [9] HealthBanc International, LLC v. Synergy Worldwide, 208 F.Supp.3d 1193, 1201 (D.Utah 2016); Phyllis Schlafly Revocable Trust v. Cori, No. 4:16CV01631 JAR, 2016 WL 6611133, at *2-5 (E.D. Mo. Nov. 9, 2016); Panera, LLC v. Nettles, No. 4:16-cv-1181-JAR, 2016 WL 4124114, at *4 fn.2 (E.D. Mo. Aug. 3, 2016); Henry Schein, Inc. v. Cook, 191 F.Supp.3d 1072, 1077, 1079-1080 (N.D.Cal. 2016); Engility Corp. v. Daniels, No. 16-cv-2473-WJM-MEH, 2016 WL 7034976, at *8-10 (D. Colo. Dec. 2, 2016); M.C. Dean, Inc. v. City of Miami Beach, Florida, 199 F. Supp. 3d 1349, 1353-1357 (S.D. Fla. 2016); GTO Access Systems, LLC v. Ghost Controls, LLC, No. 4:16cv355-WS/CAS, 2016 WL 4059706, at *1 fn.1, *2-4 (N.D. Fla. June 20, 2016); Earthbound Corp. v. MiTek USA, Inc., No. C16-1150 RSM, 2016 WL 4418013, at *9-10 (W.D. Wash. Aug. 19, 2016); Kuryakyn Holdings, LLC v. Ciro, LLC, 242 F.Supp.3d 789, 797-800 (W.D. Wisc. 2017). [10] Michelle Evans, Plausibility under the Defend Trade Secrets Act, 16 J. Marshall Rev. Intell. Prop. L. 188, 190 (2017); Eric J. Fues, Maximilienne Giannelli & Jon T. Self, Practice Tips for the Trade Secret Holder: Preparing a Complaint Under the Defend Trade Secrets Act, Inside Counsel (June 14, 2017), https://www.finnegan.com/en/insights/practice-tips-for-the-trade-secret-holder-preparing-a-complaint.html; David R. Fertig & Michael A. Betts, The Defend Trade Secrets Act: Jurisdictional Considerations—Part I, 29 No. 7 Intell. Prop. & Tech. L.J. 3, 3-5 (2017) [hereinafter “Considerations—Part I”]. [11] M.C. Dean, 199 F. Supp. 3d at 1357; Chatterplug, Inc. v. Digital Intent, LLC, No. 1:16-cv-4056, 2016 WL 6395409, at *3 (N.D. Ill. Oct. 28, 2016); Raben Tire Co. v. McFarland, No. 5:16-CV-00141-TBR, 2017 WL 741569, at *2-3 (W.D. Ky. Feb. 24, 2017). [12] Fed. R. Civ. P. 12(b). [13] Jessica Engler, The Defend Trade Secrets Act at Year One, 12 No. 4 In-House Def. Q. 20, 22 (2017). [14] Conley, supra note 4. [15] Fertig & Betts, Considerations—Part I, supra note 10, at 3. [16] Pleading the grounds for the court's jurisdiction, the plaintiff's claim (entitlement to relief), and the plaintiff's demand for the relief sought are requirements for the pleading under Article 8 of the Federal Rules of Civil Procedure (the “FRCP”). Fed. R. Civ. P. 8(a). The FRCP applies to “all civil actions and proceedings in the United States district courts.” Fed. R. Civ. P. 1. Thus, the FRCP requirements also apply to DTSA civil actions brought in federal courts. Evans, supra note 10, at 190; Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 3-4. [17] In Bell Atlantic Corporation v. Twombly, the U.S. Supreme Court interpreted Article 8(a) of the FRCP, introduced the concept of “plausibility pleading,” and established the plausibility pleading standard. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 547, 570 (2007). Under the plausibility pleading standard, a plaintiff is not required to provide “detailed factual allegations” in his complaint, but he needs to state the grounds of his claim (entitlement to relief), which should be “more than labels and conclusions.” Id. at 555, 570. At least, the plaintiff's complaint should contain enough facts showing that the plaintiff's claim is “plausible on its face.” Id. Two years after Twombly, in Ashcroft v. Iqbal the U.S. Supreme Court expressly affirmed that the plausibility pleading standard established in Twombly applies to “all civil actions.” Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Accordingly, the plausibility pleading standard applies to all DTSA claims brought in federal courts. Evans, supra note 10, at 190; Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 3-5. It is worth mentioning that some commentators are of the opinion that federal pleading stands are often higher than those required under state laws. Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [18] Gold Medal Prods. Co. v. Bell Flavors & Fragrances, Inc., No. 1:16-CV-00365, 2017 WL 1365798, at *5-8 (S.D. Ohio, Apr. 14, 2017). See also Fertig & Betts, Considerations—Part I, supra note 10, at 4; David R. Fertig & Michael A. Betts, The Defend Trade Secrets Act: Jurisdictional Considerations—Part II, 29 No. 8 Intell. Prop. & Tech. L.J. 12, 12 (2017) [hereinafter “Considerations—Part II”]. [19] McFarland, 2017 WL 741569, at *2-3; M.C. Dean, 199 F. Supp. 3d at 1357; Digital Intent, 2016 WL 6395409, at *3. See also Fertig & Betts, Considerations—Part I, supra note 10, at 3-5. [20] Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 5; Fertig & Betts, Considerations—Part II, supra note 18, at 13-14. [21] Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [22] Id. [23] 18 U.S.C. §1839(3). [24] McFarland, 2017 WL 741569, at *2. [25] Fues, Giannelli & Self, supra note 10. [26] Engler, supra note 13, at 21-22. Providing help in identifying the trade secret in question by requesting as much detail as possible is a common point shared by the plausibility pleading standard in the U.S., and the “Case Detail Explanation Form” (to be filled out by the complainant or the victim) attached to Article 6 of the “Guideline for Handling Major Trade Secret Cases in the Prosecuting Authority” in Taiwan. However, they apply to different circumstances: 1. The plausibility pleading standard in the U.S. sets forth the threshold requirements to be met by a plaintiff in his pleading when the plaintiff brings a civil claim in federal court and applies to all federal civil actions. On the other hand, the aforementioned Case Detail Explanation Form in Taiwan is a form to be filled out by the complainant or the complainant's agent. This Form provides a reference to prosecutors for the investigation of major trade secret cases (criminal cases), but it does not serve as the basis for a prosecutor to determine whether to prosecute a case. 2. The plausibility pleading standard is not only followed by those bringing a federal civil action but also adopted by federal courts when hearing civil cases. Contrarily, the aforementioned Case Detail Explanation Form in Taiwan is provided to prosecutors as a reference for investigation. A prosecutor is not bound to prosecute a case simply based on the information provided in this Form. Likewise, this Form and the information provided therein are not binding on any court in Taiwan. A commentator noted that the Ministry of Justice in Taiwan referred to the “Prosecuting Intellectual Property Crimes (Manual)” of the U.S. Department of Justice when adopting the “Guideline for Handling Major Trade Secret Cases in the Prosecuting Authority” on April 19, 2016. “Article 6 indicates that the complainant or the victim should first fill out the Case Detail Explanation Form, which would help the prosecution authority not only figures out whether the allegedly misappropriated trade secret meets the elements of secrecy, economic value, and secrecy measures under law, but also evaluates whether it is necessary to resort to compulsive measures”. Ti-Chu Chen (陳砥柱), Guideline for Handling Major Trade Secret Cases in the Prosecuting Authority, Louis & Charles Attorneys at Law (遠東萬佳法律事務所) (July 14, 2016), http://www.louisilf.com/zh-tw/posts/2016-07-14 (last visited Dec. 31, 2017). See also Prosecuting Intellectual Property Crimes (Manual) (4th ed. 2013), available at: https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/03/26/prosecuting_ip_crimes_manual_2013.pdf. However, the cover of the “Prosecuting Intellectual Property Crimes (Manual)” expressly states that its contents are provided as “internal suggestion to Department of Justice attorneys.” Id. Therefore, the contents of this manual theoretically are not binding on any federal court. [27] Mission Measurement Corp. v. Blackbaud, Inc, 216 F.Supp.3d 915, 921 (N.D.Ill. 2016). [28] Digital Intent, 2016 WL 6395409, at *3. [29] McFarland, 2017 WL 741569, at *2; Blackbaud, 216 F.Supp.3d at 921; Ciro, 242 F.Supp.3d at 798. [30] Evans, supra note 10, at 191. Some federal court decisions show that requesting the plaintiff to provide sufficient facts describing the trade secret in question is not something newly developed following the enactment of the DTSA. Rather, it has been the position held by federal courts before the DTSA came into effect. AWP, Inc. v. Commonwealth Excavating, Inc., Civil Action No. 5:13cv031., 2013 WL 3830500, at *5 (W.D. Va. July 24, 2013); Events Media Network, Inc. v. Weather Channel Interactive, Inc., Civil No. 1:13–03 (RBK/AMD), 2013 WL 3658823, at *3 (D. N.J. July 12, 2013); Council for Educational Travel, USA v. Czopek, Civil No. 1:11–CV–00672, 2011 WL 3882474, at *4 (M.D. Pa. Sept. 2, 2011); DLC DermaCare LLC v. Castillo, No. CV–10–333–PHX–DGC, 2010 WL 5148073, at *4 (D. Ariz. Dec. 14, 2010). [31] Blackbaud, 216 F.Supp.3d at 921. [32] Ciro, 242 F.Supp.3d at 800. [33] Engler, supra note 13, at 21; Hensley, supra note 8, at 44. [34] Hensley, supra note 8, at 44; Newman, Mendelson & Song, supra note 2, at 2-3; Rich, supra note 8, at 6; Engler, supra note 13, at 20. [35] 18 U.S.C. §1836(b)(2)(A). [36] Newman, Mendelson & Song, supra note 2, at 3. [37] Under the DTSA, a court may, only in “extraordinary circumstances,” issue an ex parte seizure order when “find[ing] that it clearly appears from specific facts that”: (1) “an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate to achieve the purpose of this paragraph because the party to which the order would be issued would evade, avoid, or otherwise not comply with such an order;” (2) “an immediate and irreparable injury will occur if such seizure order is not issued;” (3) “the harm to the applicant of denying the application outweighs the harm to the legitimate interests of the person against whom seizure would be ordered of granting the application and substantially outweighs the harm to any third parties who may be harmed by such seizure;” (4) “the applicant is likely to succeed in showing that the information is a trade secret and the person against whom seizure would be ordered misappropriated the trade secret of the applicant by improper means or conspired to use improper means to misappropriate the trade secret of the applicant;” (5) “the person against whom seizure would be ordered has actual possession of the trade secret and any property to be seized;” (6) “the application describes with reasonably particularity the matter to be seized and, to the extent reasonable under the circumstances, identifies the location where the matter is to be seized;” (7) “the person against whom seizure would be ordered, or persons acting in concert with such person would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person;” and (8) “the applicant has not publicized the requested seizure”. 18 U.S.C. §1836(b)(2)(A)(ii). [38] 18 U.S.C. §1836(b)(2)(A)(i). [39] Engler, supra note 13, at 21; Michael T. Renaud & Nick Armington, DTSA and Ex Parte Seizure – Lessons from the First Ex Parte Seizure Under The DTSA, Mintz Levin Cohn Ferris Glovsky and Popeo PC (Aug. 21, 2017), https://www.globalipmatters.com/2017/08/21/dtsa-and-ex-parte-seizure-lessons-from-the-first-ex-parte-seizure-under-the-dtsa; Matthew Werdegar & Warren Braunig, One Year On: the Federal Defend Trade Secrets Act, Daily J. (Apr. 26, 2017), available at: https://www.keker.com/Templates/media/files/Articles/Keker%20(DJ-4_26_17).pdf. [40] Newman, Mendelson & Song, supra note 2, at 3; Dharnidharka, Day & McCrimmon, supra note 8; Werdegar & Braunig, supra note 39. [41] OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017, 2017 WL 67119, *2 (N.D. Cal., Jan. 6, 2017); Magnesita Refractories Company v. Mishra, CAUSE NO. 2:16-CV-524-PPS-JEM, 2017 WL 365619, at *2 (N.D. Ind. Jan. 25, 2017). [42] Baleriz Carribean Ltd. Corp. v. Calvo, Case 1:16-cv-23300-KMW, at 7 (S.D.Fla. Aug. 5, 2016). See also Renaud & Armington, supra note 39. A commentator opines that federal courts are reluctant to issue an ex parte seizure order against someone who has never concealed evidence or disregarded court orders before. Engler, supra note 13, at 21. [43] Digital Assurance Certification, LLC v. Pendolino, Case No: 6:17-cv-72-Orl-31TBS, at *1-2 (M.D.Fla. Jan. 23, 2017). [44] Engler, supra note 13, at 21; Dharnidharka, Day & McCrimmon, supra note 8. [45] Mission Capital Advisors, LLC v. Romaka, No. 16-cv-05878-LLS (S.D.N.Y. July 29, 2016). Some commentators consider Romaka the very first case in which a federal court ordered a DTSA ex parte seizure after the DTSA became effective. Renaud & Armington, supra note 39. [46] Romaka, No. 16-cv-05878-LLS, at 1-3. [47] Id. at 2. [48] Id. [49] Id. [50] In Romaka, the federal district court found the followings after reviewing the facts of this case along with the requirements under the DTSA: (1) “[a]n order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate because [the defendant] would evade, avoid, or otherwise not comply with such an order;” (2) “[a]n immediate and irreparable injury to [the plaintiff] would occur if such seizure is not ordered;” (3) “[t]he harm to [the plaintiff] of denying the application outweighs the harm to the legitimate interests of [the defendant];” (4) “[the plaintiff] is likely to succeed in showing that the information at issue is a trade secret based on [the plaintiff's] averments;” (5) “[the plaintiff] is likely to succeed in showing that [the defendant] has misappropriated [the plaintiff's trade secret] by improper means;” (6) “[the plaintiff] is likely to succeed in showing that the [defendant] has actual possession of the [plaintiff's trade secrets]; (7) “[d]espit the risk that [the defendant] would make the [plaintiff's trade secret] inaccessible to the court, or retain unauthorized copies, [the plaintiff] is proceeding on notice;” and (8) “[the plaintiff] is likely to succeed in showing, and has represented, that it has not publicized the requested seizure.” Id. at 2-4. [51] Id. at 4. In Romaka, the plaintiff also applied for the seizure of its proprietary information other than its client and contact lists. However, the Romaka court denied the plaintiff's request for the seizure of other proprietary information because the plaintiff failed to describe “with sufficient particularity” such information and related facts, such as “confidentiality and irreparable harm.” Id. [52] Renaud & Armington, supra note 39. [53] Id. [54] Newman, Mendelson & Song, supra note 2, at 3; Engler, supra note 13, at 21; Renaud & Armington, supra note 39. [55] Newman, Mendelson & Song, supra note 2, at 3. [56] For instance, the injunctive remedies available under the DTSA. 18 U.S.C. §1836(b)(3). For further example, a preliminary injunction or a temporary restraining order available under the FRCP. Fed. R. Civ. P. 65(a), (b). [57] As stated above, the DTSA does not preempt or displace any other remedies provided by other federal laws and state laws for trade secret misappropriation. 18 U.S.C. §1838. [58] Cook, 191 F.Supp.3d at 1077, 1076-1077, 1079; Daniels, 2016 WL 7034976, at *10-11, 14; Nettles, 2016 WL 4124114, at *4. See also Newman, Mendelson & Song, supra note 2, at 2-3; Rich, supra note 8, at 6; Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [59] DTSA §2(e), Pub. L. No. 114-153, 130 Stat. 376, 381-382. [60] Werdegar & Braunig, supra note 39; Krotoski, Burkholder, Harrison & Houmand, supra note 2, at 14; Engler, supra note 13, at 21. [61] Avago Technologies U.S. Inc. v. Nanoprecision Products, Inc., Case No. 16-cv-03737-JCS, 2017 WL 412524, at *9 (N.D.Cal. Jan. 31, 2017); Cave Consulting Group, Inc. v. Truven Health Analytics Inc., Case No. 15-cv-02177-SI, 2017 WL 1436044, at *5 (N.D. Cal. Apr. 24, 2017); Physician's Surrogacy, Inc. v. German, Case No.: 17CV0718-MMA (WVG), 2017 WL 3622329, at *8-9 (S.D. Cal. Aug. 23, 2017). See also Tara C. Clancy, April Boyer & Michael R. Creta, Emerging Trends in Defend Trade Secrets Act Litigation, National Law Review (Sept. 26, 2017), https://www.natlawreview.com/article/emerging-trends-defend-trade-secrets-act-litigation; Milligan & Salinas, supra note 8. [62] Cook, 191 F.Supp.3d at 1076-1079; Allstate Insurance Company v. Rote, No. 3:16-cv-01432-HZ, 2016 WL 4191015, at *1-5 (D. Or. Aug. 7, 2016); Syntel Sterling Best Shores Mauritius Limited v. Trizetto Group, Inc., 15-CV-211 (LGS) (RLE), 2016 WL 5338550, at *6 (S.D.N.Y. Sept. 23, 2016); Adams Arms, LLC v. Unified Weapon Systems, Inc., Case No. 8:16-cv-1503-T-33AEP, 2016 WL 5391394, at *6 (M.D. Fla. Sept. 27, 2016); Brand Energy & Infrastructure Services, Inc. v. Irex Contracting Group, CIVIL ACTION NO. 16-2499, 2017 WL 1105648, at *3-8 (E.D. Pa. Mar. 24, 2017); Sleekez, LLC v. Horton, CV 16–09–BLG–SPW–TJC, 2017 WL 1906957, at *5-6 (D. Mont. Apr. 21, 2017). See also Rich, supra note 8, at 8. [63] Unified Weapon Systems, 2016 WL 5391394, at *6; Horton, 2017 WL 1906957, at *5-6. See also Milligan & Salinas, supra note 8; Werdegar & Braunig, supra note 39. A recent federal court decision reveals that federal courts will likely dismiss a DTSA claim if a plaintiff makes no specific allegations other than a “conclusory allegation” of the continuing trade secret misappropriation. Hydrogen Master Rights, Ltd. v. Weston, 228 F.Supp.3d 320, 338 (D.Del. 2017). See also Engler, supra note 13, at 23. [64] Unified Weapon Systems, 2016 WL 5391394, at *6. See also Rich, supra note 8, at 8. [65] Engler, supra note 13, at 23. [66] Milligan & Salinas, supra note 8. [67] Engler, supra note 13, at 23. [68] 18 U.S.C. § 1838. [69] Conley, supra note 4. [70] Synergy Worldwide, 208 F.Supp.3d at 1201; Cori, 2016 WL 6611133, at *2-5; Nettles, 2016 WL 4124114, at *4 fn.2; Cook, 191 F.Supp.3d at 1077, 1079-1080; Daniels, 2016 WL 7034976, at *8-10; M.C. Dean, 199 F. Supp. 3d at 1353-1357; Ghost Controls, 2016 WL 4059706, at *1 fn.1, *2-4; MiTek USA, 2016 WL 4418013, at *9-10; Ciro, 242 F.Supp.3d at 797-800. [71] Evans, supra note 10, at 190; Fues, Giannelli & Self, supra note 10; Fertig & Betts, Considerations—Part I, supra note 10, at 3-5. [72] Blackbaud, 216 F.Supp.3d at 921. [73] Digital Intent, 2016 WL 6395409, at *3. See also Evans, supra note 10, at 191. [74] Engler, supra note 13, at 21; Dharnidharka, Day & McCrimmon, supra note 8. [75] Sultanov, 2017 WL 67119, at *2; Mishra, 2017 WL 365619, at *2; Calvo, Case 1:16-cv-23300-KMW, at 7; Pendolino, 2017 WL 320830, at *1-2. See also Newman, Mendelson & Song, supra note 2, at 3; Engler, supra note 13, at 21; Renaud & Armington, supra note 39; Werdegar & Braunig, supra note 39. [76] Newman, Mendelson & Song, supra note 2, at 2-3; Rich, supra note 8, at 6; Boxer, Griem, Jr., Malyshev & Ruffi, supra note 8. [77] Cook, 191 F.Supp.3d at 1076-1079; Rote, 2016 WL 4191015, at *1-5; Trizetto Group, 2016 WL 5338550, at *6; Unified Weapon Systems, 2016 WL 5391394, at *6; Irex Contracting Group, 2017 WL 1105648, at *3-8; Horton, 2017 WL 1906957, at *5-6. See also Rich, supra note 8, at 8. [78] Milligan & Salinas, supra note 8. [79] Engler, supra note 13, at 23.
The IP Strategy of Collaboration during COVID-19 Pandemic in TaiwanThe IP Strategy of Collaboration during COVID-19 Pandemic in Taiwan 1. IP strategy during COVID-19 pandemic Since the end of 2019, the coronavirus disease called “COVID-19” has become a global pandemic. World Health Organization (WHO) has announced that COVID-19 a Public Health Emergency of International Concern (PHEIC) on Feb. 12, 2020. WHO also announced that the new corona virus pandemic is requiring substantial efforts to enable regular information sharing and research, the global community should demonstrate solidarity and cooperation.[1] Dr. Mukhisa Kituyi, the Secretary-General of United Nations Conference on Trade and Development (UNCTAD), pointed out that Collaboration is the engine of global science under COVID-19 pandemic. Global community should take the experience of Ebola outbreak in 2014-15, through global collaboration can provide opportunities both to create new knowledge and to increase the impact of research by diffusing existing knowledge, quickly and at all levels. Both “openness on data” and “open science in real time” are the key factors of improving collaboration under the crisis.[2] Chesbrough (2020) noted that the pandemic stimulating innovation in management of intellectual property, such as initiatives like “Open COVID Pledge” encourages companies and universities to release intellectual property for fighting against COVID-19. The IP strategy based on “Open Innovation” concept can go much further, to play an important role in recovering after the crisis.[3] There are two international famous cases in Taiwan, “National face mask production team” and “Face mask map” helped Taiwanese people to overcome the crisis lack of masks during the pandemic. Both cases show the importance of open innovation in facing the crisis, and contain the concept of IP strategy based on collaboration. 2. National face mask production team Because over 80% of face masks rely on imports, Taiwanese government was aware of the lack of masks when the epidemic began. Since the first COVID-19 case in Taiwan was confirmed on Jan. 21, surgical face masks were sold out in a very short time. The government banned the export of masks on Jan. 24 for controlling the shortages, but it was still a big problem that the production lines at that time could not afford the demand of Taiwanese people. Therefore, how to obtain a large number of mask production lines in a short time and ensure the supply of raw materials had become the primary issue. The government invested NT$200 million (US$6.66 million) and recruited over 100 technicians to form the team named “National face mask production team”. The national team is composed of volunteers from industry and research institutions, especially from Taiwan Machine Tool and Accessory Builders' Association (TMBA). From Feb. 5 to Mar. 5, the national team completed an estimated half a year’s workload including 62 mask production lines. And the team immediately started the second phase of work to meet the extremely large domestic demand for masks, finally they completed 92 mask production line 6 weeks[4] and continue to assist the government in anti-counterfeiting masks. The key factor for the team to complete such a large amount of work in a very short time is not only the selfless dedication of team members but they effectively utilize and share their advantages in their own industrial field. These team members are “Hidden Champions” of global supply chain, after understanding the composition and principle of each part of the mask production line, they immediately began to assign the work and contributed their skill, know-how and experience of machine tools and accessories for mask-producing collaboration. 3. Face mask map In additional to the national face mask production team case, the “face mask map” is another successful case of collaboration during the epidemic in Taiwan. In the beginning of the epidemic, Taiwanese people rushed to buy surgical face masks, resulting in insufficient supply of domestic masks. The government implemented face mask purchase controlling such as limiting three per day and later only two per week through the National Health Insurance Administration (NHIA). According to the rationing system, people can buy surgical face masks at NHIA-contracted pharmacies near their home. But in fact, due to the face mask distribution information was not disclosed, people often have to go to many pharmacies to buy masks. Thus, people spontaneously developed “face mask map”, combined with pharmacy locations on Google Maps and the data of inventory quantity in each pharmacies, to help people know where to buy surgical face masks. Taiwan’s Minister without Portfolio Audrey Tang was in collaboration with Taiwanese software engineers to develop a “real-time map” of local face mask supplies through connecting pharmacy locations on Google Maps and the data of mask inventory quantity in NHIA’s database. With the support of the NHIA database opened according to the license terms compatible with Creative Commons (CC) 4.0, the platform contains over 100 programs and applications was successfully created by public-private collaboration.[5] This platform is jointly maintained by the open community, each member of the community can actively report the updated version information of the applications. Even if the platform has retired due to the implementation of “Name-based Mask Distribution System 3.0”, the successful experience of public-private collaboration platform through “open data” and “open source software” becomes an important foundation of future development. 4. Collaborative IP strategy for crisis management In different from the traditional IP strategy that emphasizes on excluding others from implementing the patents, the collaborative IP strategy pays more attention to the potential of community co-creation. In the face of the crisis of the epidemic, people are willing to share their IP, know-how and experience to gain more time to fight the epidemic. The collaborative IP strategy can implement the concept of open innovation through knowledge sharing, and flexibly use various IP resources in the face of crisis. Especially in the face of a crisis like COVID-19 that has never been dealt with, the collaborative IP strategy can effectively collect the knowledge and creativity of the community. Cases of “National face mask production team” and “Face mask map” can be used as models for collaboration in the face of crisis, and even continue to be used for recovery after the epidemic. The open innovation theory supports open, flexible and highly interactional “creative networks”.[6] At the same time, the collaborative IP strategy serves as a means to implement the open innovation theory. Even though many open communities’ IP strategy such as “free and open source software” or “creative commons” do not originate from the open innovation theory, the theory can still provide guidance for collaborative IP strategies in times of crisis. The collaborative IP strategy should not be limited to the sharing of patents, copyrights or trademark rights but include the skill, know-how, experience and idea, which is able to effectively organize community collaboration and innovation in the face of crisis. [1]World Health Organization, Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV) (2020), https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov) (last visited Oct. 19, 2020). [2]Mukhisa Kituyi, COVID-19: Collaboration is the engine of global science – especially for developing countries, World Economic Forum, May 15, 2020, https://www.weforum.org/agenda/2020/05/global-science-collaboration-open-source-covid-19/ (last visited Oct. 20, 2020). [3] Henry W. Chesbrough, To recover faster from Covid-19, open up: Managerial implications from an open innovation perspective, Industrial Marketing Management, Apr. 16, 2020, available at https://doi.org/10.1016/j.indmarman.2020.04.010 (last visited Oct. 26, 2020). [4]Central News Agency, How a team of technicians is helping Taiwan triple mask production, Taiwan News, Mar. 25, 2020, https://www.taiwannews.com.tw/en/news/3903970 (last visited Oct. 30, 2020). [5]Keoni Everington, Taiwan platform includes over 100 apps showing mask availability in stores, Taiwan News, Feb. 27, 2020, https://www.taiwannews.com.tw/en/news/3882111 (last visited Oct. 30, 2020). [6]Ali Jazairy, Impact of Collaborative Innovation on IP and Future Trends in IP, Les Nouvelles, 47, 224 (2012).
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