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    Patent-Data-Privacy-Act

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    26 views19 pages

    Patent Data Privacy Act

    Uploaded by

    Emilio Joshua Padua

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    REVIEWER ON CONOMERCIALLAW Shoes of N Cosporaton and the horn fhe gods ions refer to any technical solution y field of human activity which is ive step and is industrially a) Requisites 2005 Bark solution of a problem in any » re not t applaton 2, 2 the ation ate published in rr involves vont i ecm ous to a “person skilled jlote In the case of drugs and ins there isn inventive ss the Hon esl Nar dove one fm ew Property of «known substance wi doesnot sulin he enone ‘he kaon eicacy ofthat substance, Mere use of a known process unless such known proces results in a new product that employs atleast one new reactant (Se. 22, IPCas amended by RA. ‘No, 9502). ‘Berson skilled in the Art — presumed to ‘be an ordinary practioner aware of what was common general knowledge in the art atthe relevant dat. He is presumed to arts reasonably pertinent to the particular problems with which the inventor was REVIEWER ON COMMERCIALLAW involved. Hei presumed also tohave had at his disposal the normal means and capacity to routine work and experimentation (Rule 207) 5) Industrial applicability — an invention that ibe produced and used in any industry (Sec. 27, PC Whatare the purposes of patent law? the strings ‘seek to ensure that ideas in the supra) ‘The law attempts to strike an ideal balance between the two interests: The patent system thus embodies a carefully crafted bargain for encouraging the creation and disclosure of new tuseful and non-obvious advanees in technology and design, in retum for the exclusive right to practice the invention for a number of years ‘The inventor may keep his invention secret and reap its fruits indefinitely. In consideration of enjoyment is guaranteed him for twenty (20) ‘years, but upon the expiration of that period, the the people, 702, Classes of patentable inventions a) Useful machine; b) product 103. PART Vit ELECT ° “patentable inventions Moree cope Process; Improvement hor (3 Microorgnisn ang" Non biological and 201 Rasen ep 8 pcs nO on Iceni). Discoveries, ce method,” "S*S thors ad mathemati and programs for computer Methods for teatnent of te animalbodyby sane eden hee Human tedy or 1 and agoet or anal body Plant varioties oan : animal breeds of biological process for of esenally animals; the production of plants or ‘Aesthetic creation; Anything which is contrary to pubic morality (Se 22Ip¢, “PAK order or In the case of drugs and medicines, there is no patentable invention inthe following instances 1) Mare discovery of a new form or new propety of a krowm substance which dos not sult in th enhancement of the known, efficacy ofthat substance; 2) Mere discovery of any new propety oc new se for akon substance: 3) Mere use of a known process unless such known proces els inane product hat cmplos at lest one new reactant (St, 2, [PC esamene by RA Na $50). 708. 708. [REVIEWER ON CONOMERCIALLAW PERSON ENTITLED TO RIGHT patent belongs tothe inventor, his jgns (2012 Bar). oor more persons have the right toa patent s the pers such invention (Sec. 29, LIMITATIONS OF PATENT RIGHTS ‘The following acts are NOT PROHIBITED: mer's Consent. Using a patented product ich has been put on the market in the ippines by the owner of the product, or 's express consent, insofar as such use is pesformed after that product has been so put on the said market (Sec. 721, IPL). Importation of drugs and. bya private third party (Secs. 72.1 and 725, IPL, as ‘amended by R.A. No, 9502). Private parties must import from BFAD. However, secure a license 7641, IPL). ©) Non-Commercial, Acts done privately and ona scale fc A a act does natigifc ) Experimental Use. The act consists of making. or using exclusively for experimental use of the invention for scientific purposes or educational a ki : rel 8 the i “ine ising, making Pop any a Tease aa and submission o2 Rlted tg eee for constriction wot het sowabin enero 8) Patent Exhaustion. The excusie sight ofthe Patentownerisexhaustedaterthefistauthorsed repair and resell the product (keler » Folin BC, 175 ooh es purchaser may not reconstruct the product frm the parts of products that were already used PREJUDICIAL DISCLOSURE ‘Whatever right one has tothe invention covered by the patent arises alone from the application date. ‘Thus, if the with impunity Ideas, nce disclosed tothe public nat the protection ofa valid patent are subject to appropriation without sigifcant restaint (sr {& Dean [Phil Shama In ay i, citing Creer Precision System, Ic 2.CA,286 SCRA 13 [198D. RON COMMERCIALLAW For example, there would be prejudicial ducieere it the inventor secured a copyright disco or drawings that depicted light boxes. On the assumption that es are patentable re woul al disclosure tothe the disclosure is made bj anyone who has the right ‘2) when the information of the latter jonfiled by the |. TERM OF A PATENT ‘The term of a patent is 20 years from the filing date of application (Sec. 54, IPC). INFRINGEMENT making, using offering for 8 the product; Yo ask that ingi the BING Products or pope tf OE that the estroyed (See. 765, satisfied in either ofthe (1) _Exactness rule: The item ha ite thats bing sold ‘made or used conforms Se iadeor wel oins al oie elements of the patent of another plus cher elements Doctrine of Equivalents. ‘The doctrine of equivalents provides that an infringement als takes place when a device appropriates a prior invention by incorporating, its innovative concept and although with some ‘modification and chang, performs substantially the same function in substantially the same way to achieve substanally the same result. In REVIEWER ON COMMERCIALLAW rp $8ENCY Of the Covernme 3) real sie or, - yor ema anti-competit a 4) ts se a Benctenommer se ofthe oe snquage ofthe patent stint. The patentee is bound thereby and may no claim anything beyond "and so are the courts bound, such cr may not add to or detract from the 6 shatters not expressed or necessarily fed nor may they enlarge the patent ‘which the inventor ‘b) In whose favor, be grante Compulsory license should the date fing of or thre (3) years from the date of pies ast <4) Requirement to obtain a license on resonable commercial ters. The Compulsory lense will only be grated after the petitioner has made efforts to oban authorization from the patent owner on reasonable commercial terms End conditions but such efforts have not been Successful within a resoable period of tne IPL as amended by RA, No. 8502). ifort ») ° REVIEWER ON COMMERCIALLY jon is not required in the ion for compulsory license 's practice determined after ve process to be anti- competitive: ions of national emergency or other ite an adequate extent and ao erokable terms, as determined by the the Department of Health (See een by RA No 9502) nse and Technology Transfer Agree- y Transfer Arangements fer to rege sarcment involving the transfer of emer te e for the manufacture of a fon of process, or rendering ypmanagerent contracts and licensing ofall forms ‘Technolog; through the Director of formation and Technology exercise quasi-judicial jurisdiction in the settlement of disputes between fies to a technology transfer arrangement q) °) ARV LECTUALD a a (Sec. 87,4 ” are deemed sh Prhii Prina jet ibited peo on compet St to fae’ Pvsons which Sections’ git™ and trade ane 3M adverse effect enumerated in proper has its, Principal office: 2) Continued ac t See ‘echnoogy hal ena peed et arrangement, Unenforceable, A Technology Transfer Agree- ment or any Voluntary License that contains a prohibited provision or doesnot contain any of the mandatory provisions shall be considered om 742, What is the concept of REVIEWER ON COMMERCIAL LAW _ 92, IPC). However, registra- sional applications? “The concept of divisional applications comes into play when two of more inventions are claimed in a fs fre of such a nature that a single pplication but ee sued for them. The 3p the "to divide,” that appl Honorable CA, su BAR PROBLEMS: invented a method of improving the tendemess of meat by Jinan encyme solution into the iver ofthe animal shorty ‘fore slaughter Is the invention petentable? ie patentable Section 21 of IPC provides that “any AP problem in any feld of urman activity which sn iaventive step and i industrially applicable Table It may be, oF may seate 10, 2 product, of rmprovement of any of te foregoing,” The process ‘athe ender of mest appears to be anew technica sted a bogus coin detector which can be used exclusively on erating pambling devices otherwise known as one-armed. 226 provides that anything ity shal be excluded from involved in this case appears tobe bi to publ legalized gambling suchas red bythe government, con suggested that they for friends and have the corporation apph ce EEA oy PERTY CODE, ofthe shares of tock bby Macon. The compet tbe twas fled. Homers ah me eb Check and, mack Fonte Franco, he et application ofthe nt" 884 husband comer os heclesurense nd gM: Cee fCheche Desa pletion heute Chee is aleagy ote ‘saad invent hs applnne, MHY dea. hehe te ape Aon Secon Say on et beet tee mane oe, mathematical met ane “non. en ire cra feat ee icetann cea oN 8, TRADE SECRETS A trade secret is a plan ot process, tool, mech compound known only anism or to whom it is necessary formula or process not patented, but known only to certain individuals using it in compounding some article of trade a) A trade secret may consist of any formula, pattern, device, or compilation of information that (1)is used in one’s business and (2) gives the employer an opportunity to obtain an advantage Cover competitors who do not possess. the information It can bea (i) chemical composition, 801, 02, REVIEWER ON COMMERCIALLAW ») nt Ife ovner af the trade nat be compelled to dsose Sat general sue a junction to Copel such dose i). 6) The ingredients of consumer products ae not se sets They shouldbe indicated in the wade ese Section 77 of the Consumer Act reve ingens of chemicals supplied to fe companies are not eorsumer product Sean or products ae pinay for Persona, eri nonhold or agicutral purposes id) APPLICABLE LAWS: ‘Trade secrets protection is not covered by the constitutional right to information. under Section 66.2 of the Securities Re “Articles 291 and 292 ofthe Revised Penal Code, Section, 278 ofthe National Internal Revenue Code and Section, 12 of Republic Act No. 6969, otherwise known as Toxic Substances and Hazardous and Nuclear Waste Control ‘Act of 1990 (Ibid) FACTORS ‘The following factors can be ut if an information sa trade secret ‘employees and others involved in 9 weasures taken by the employer to ” PART Ving STUAL op PERT cope 5) 6) The a o company no oo Arba indeepag em OF y he The Ment to which the yee -asily Or readily bin i source ‘ormation could be Maint gh anndc APPENDIX |APRIMER: DATA PRIVACY ACT OF 2012 (REPUBLIC ACT NO. 10173) fing the Implementing Rules and Ret Issued by the National Pri jine Constitution rotected under the Constitution, ‘The Constitutional protection includes Section 3(1), Article If GBllofRights) ofthe ippineConstitution (Constitution) which provides that: spondence shi the court, of when public safety or order requires as prescribed by law:” On the other hand, Section 24, Article Il (Declaration of Principles and State Policies) of the Constitution declares that: “The State recognizes the role of communication and information in nation-building, lay between the foregoing Constitutional provisions find life in Republic Act (R.A.) No, 10173, otherwise known as the Data Privacy Act of 2012 (DPA). Declaration of State Policy (R.A. No. 10173) the State to protect the fundamental human y, of communication while ensuring free flow tation to promote innovation and growth. ‘The State recognizes the vital role of information and communications technolo obli and communi private sector are secured and pr e government and in the sted” (Section 2, DPA). 201 Two-Fold Purpose of the Act. —Based onthedeclaration of policy, the DPA thus seeks to: b. Ensure the innovation ant 2%, 9 omaon to promote The pus ana UP ty Toe DPA pectin tothe bas right in the Constitution. The the governmentbut and protected (See. 2, DPA). In performance of the Sate’ clan taken 03 new jimension, requiring continuing review and up of protocols to keep abreast with ‘opmens ofp constant developments alsin the private sector are secured this digital age, the 3. Scope of DPA. 301 What Ate Covered — The Da Pay Ato 2 applies to the proceing ofall types of personal information data. ud 3.0101. Personal infomation ~ “Pesan informa: tion’ is deine stat which “ees to ay information whether recorded in 2 mate farm or nt rm which he deny dividuals apatet oe canbe esol ely sserine bythe entity holding the jnformation, or when put together with other ly iden 3.01.02 302 Who Are Covered. ‘or are involved in personal whether natural or juridic ‘government and ‘Sec. 4, DPA: Set. 4, 3.0201 3.0202 REVIEWERONCO -RCIALLAW sonal Data. — AS the term “personal reer IRR that refering “to all es (53 Those who process personal data information processing, ‘al persons in both the fors, are covered by the The DPA covers personal ion contollers and processors (i Personal Information Controller. — A “per. onal information controller” is “a person or SMEarzaton who controls the collection, hold- reprocessing oF use of personal informs. tian, including a person or organization who fs another person or organization to hold, process, use transfer or disclose persona information on his or her behalf” and ivate excludes: (“A person or organization who performs such fanctions a8 instructed by another person oF 07g () An individual who collects, holds, pro- uses personal information in ual's person- (Sec. 30, Personal Information Processor. — A “per sonal information processor” is “a natural or juridical person qualified to act as such under the Aett0 whom a personal information con- troller may outsource the processing of person- al data pertaining toa data subject” (Se. 3, DPA Data Subject. — “Data subject” isan individ. ual whose personal formation is processed (Sec. 30) DPA). circumstances (The naturat rocessin Inthe Phil aii Personal gh iolved in the fren ats found reste (ii) The act, data about a Processing. alates sae ap (ii) The processin, the Philippines PA datas beng done in fv) done or engaged oS of penonal engaged in by anon datas Philippines, such ag,” “89 Mth inks to the 1) esteem ine ps (2) Maintain an off ; 28 ofc, bach o gency in Philippines fr prom apres 6) contracted in he Pippin @ ical entity uni Puta ty wincrpoted in the cnn bel maagenen and 6 lcs or holds personal data pines (Se. 4, IRR; Sec. 4and Se. 6, 3.04 Exclusions/Special Cases, — There are specie information that are expressly excluded from the scope ‘of application of the DPA but “only to the minimum. REVIEWER ON CONMERCIALLAYY cus, use dlosure urpote, function or Popa) nother wordy ‘disclosure or other processing purpose, function, jn te DPA or the IRR, the scope of the DPA/ special exclusion from extent of collection, 2 IRR. The info the scope of the DPA are (@) Information tha concern, pertaining (1) Information al within matters of public government officer/ tes to his/her position or (©) His/her ti lephone: (0) The classification, salary range, and responsibilities of his/her position; and is/her name on a document he/ she prepared in the course of his/her government employment; Information about an individual who is or was performing a service under contract for government institution, But only a to ot ‘such service, including the name vidual and the terms of his/her ¢ ° Example: Grant This does not in efit granted in the course of an ordinary transaction or asa matter ( wi e : 5 2 tion ‘Act shall have the burden, foreign ‘of proving the law of the inthe absence of proof, the the DPA (and the IRR) isthe 3.04.01 Duty of Personal Information Controllers and Processors, — While the information specified above are exuded fom the seope of application ofthe DP, the exsion does nat 4 EVIEWER ON COMMERCIALLAW eran information Sense Fesonalnformation and Prileged information tor petains —Scion3 ofthe DPAand the RR Provide te tsnal information’ “sensitive forthe oral rad “privileged mation” Pema ed in po aon es 401.01 Personal Infor ; “personal informati Section 3.01.01 (Scope of DPA) abovel can be broken down as follows: say information from which the INTITY of an individual is— “Apparent; or Can be reasonably and. directly ascertained by the one holding the information; or (ii) When put together with other information would directly and certainly identify an individual; b, The information may or may not be recorded in a material form. Question: ‘Which ofthe following are personal information? 4.01.03, a. Issued by Sovernment 28 social sen ett SPS, such arent heh nee Pres or of issuance, Suspension eo ils TCO, tax returns; and, “YOCstion Specially established by an ecu executive manent ext) pg Mt Rules of Cour enumerates “matte confidence” which are considered privileged communication ose) 8. Communications between husband and wife during the mariage REVIEWER ON CONMERCIALLAW vg secretary, stenographer, or the tory’ ect, stenographer or ‘Communications between Patient and ee - ating ne ays PPA rove = the pate OT PPeled a eM aS to have es a = i a on sel et cr ree se lesa thereot oo 5. rmeesng of een norman ca. og bene Cape he DPA nen sacra i tt sn i = nena patleged information may ghite De raeabs” Piefined as any operation or atin a . a sssonal information, no alowed, Ee upon ee ealowng oie om subject ust be aware of th Purpose, and e ‘i (i) Recording (ii) Organization (iv) Storage (y) Updating or modification b. Legitimate = Retrieval sitimate Purpose — The processing ( — of personal information shouldbe Consulta compatible with a declared and specified Purpose, which must not be contrary 0 Jaw, moral, or publipolic. = The processing of ation shouldbe adequate, table, necess biga compliance contol, ° © Persona inant © tis ecessa interes Vitaly important ta subject, ee sek Penetttly includes the prow, ing of Personal data for the ae) Mandate falfllment of it treo je equi protection ‘de the Philippine Coston The undetying requirement under any cicunstan tht the psy ‘of personal information should not others be probed by han, Enample Car dealers would tke to cole and use personal Of deposit acount, of individuals Becautothe provanl eSecey Bark Dees hee keption woud eit as ip ese pase otis her pesonainomaon pRCIALLAY evr wERON CON When the processing . povided for by exsing ns nd regu (0s provide ged that (1) the regulatory tions, provided he protection of the informa- ally or legally able to ex- jr to the processing; essary for the protection interests of natural or 5.04 Data sh Processi wring — “Data ” than the egg eoPa data coegey pes fether data shavings Section thee 2 PAY other sto sharing shall be allowed whee Provides that ») (Consents required even when beshandwidhansteg ee the datas to late or mother coy Or similar relationshipg, ONE OMPHNY beet jest to review by the National Privacy Commission (NPC), on its own initiative o upon complaint of data subject; (3) Before data is shared, data subject shal | ity ofthe pe information controllers of processors will be given acess to the personal cOMMERCIALLAN TAPRIVARY, eae No pera « "Sona informa «i purpose of 3 ae putin ss Med hap of personal da eal dat ty and avai ges he reopen feat ube 2 rreven i us ee eal Therightsof the data subi id other PY ith provisens ozed access 10 Core iy the data Subject of " other NEC ttt Proviso of kt te ae ermation tontily ect of © outsourcing Ssuanes (ee a3 ea tof data sharing and the information procee 2 that auth RR) tena froeessing by Personal manner of process processor shalt Persona inci rther processing of shared data shall adhere 1) Set out the subject (9) Fane Peay RGIS. Pee at research when the personal data Of personal an ©) Forthe purport abl,or has the consent of the data obligations ands J aay urpose of research. The data subject's contol peng sae Pte upheld without compromising 2) Stpulte the spec ci revearch integrity iran a se + for the purpose of personal aye 2% incl wrernment agencies for the purpose ree )_ Between Bection or provision of a public service, OF the perenne at tharing stall be covered by a Data that a gear The dats Sement, all agencies involved shall persone ake i tithe DPA, the IRR and other issuances Gime sae Apc. The DSA shall be subject to review by ie SREP onits own initiative or upon complaint of Blea ty data subject. relative to th ach, — In case of data breach, the personal vie cen a a eto cone shal ofthe NPC andthe data ne Subjects within seventy-two (72) hours from knowledge lata subj has the flaming sighs a : Seer Dent breach notfcation shall likewise be Section 16 of the DPA: lowing tights as provided made when there is reasonable the personal 1) To be INFORMED that his/her . information controller or processor that a personal data shall be, are being orhavebeen prececay oTmaton breach requiring notification has occurred (Sec, 505.01 Contents of Data Breach Noti notification shall contain 2) To be FURNISHED the information below before the entry of his/her personal information into the processing system of the personal information controller or at the next practical opportunity: (2) Description of the personal information to be ‘entered in the system; 5.06 Outsourcing Agreements. — A personal information (©) Purpose/s for which the informations being oris to controler is allowed to subcontract or outsource the be processed; ALLA peviewERON COMMERCIAL and method ofthe proces: raj to whom te information iS OF may be Recipient / a 4 for automated access, ifthe same i Meo ee data subject and Hn extent which eta auton _ tact details of the personal informa. (enti es epee ‘The perio for which he information will be store, tencooftherightto ACCESS CORRECTION, ‘COMPLAINT before the National ® th) Theexist Opto LODGE a Privacy Commission: ‘To reasonable ACCESS tothe following, upon demand: (a). Contes of his/her personal information that were processed Sources from which personal information were obtained; [Names and addresses of recipients of the personal information; (@) Manner by which data were processed; (©) Reasons for disclosure of personal information to recipient/s (O Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly afecting or will affect the data subject, () Date when his/her personal information were last accessed and modified; and (h)_ Designation, or name personal information con To DISPUTE the inaccuracy oF error in the personal information and have the personal information controller ‘CORRECT it immediately, outa for unauthorceg the purposes tortie To be INDE inaceurate eee recollcied; 7 dam Ise ABS Sustained due to obtained of Sr nstansceen aoa, Beda Haha cbain om be eS ae 2 copy of date ary Pena information controle ‘When Rights Not Applicable. — subject ar notavinens PES te dat information are used ony f only for the ic and statistical research, where and the pesonal information shal be hin sti ene and sed olf the ddared prose (2) The processing of persona infomation is for the relation to criminal, ies ofa data subject (See. 19, DPA). 7. Security Measures : 701 Organizational Securit _guidelines for orga ni seco fvith by personal information co Jnformation processors Of REVIEWERON CONMERCIALLAY Measures. — The following ona security shall be complicg and personal Petsons/ bodies involved in the processing of personal information; ate Data Protection fice or Compliance Dasierte jth shall enre compliance with Cte le and egultons the proton Plata privacy and security ‘Adopt and implement Data Protection Policies, AAR te subject to regular review evaluation TE sting the polices shall Provide for srecfaton® physial, and. technical security Sr ig mo Sunt the ate spe roe pupost of the processing and sks pose tothe dtasejecs’ rights and freedoms; onan records sufcerty desribing the data a pad ifying the duties and of individuals with acess to Manage Human Resources — select and supervise its employees, agents, representatives, particularly those with access to personal data, and ensure th they hold personal data under strict confidentiality; Develop, implement and review the following procedures: (1) Procedure for data and for obtaining consent limiting the processing of data necessary for the declared purpose) for access management, system m protocols to follow during security incidents or technical erasure or disposal of AAs regards personal. information controllers, ensure that outsourcing contracts with personal 28, RR), ear! provide for the red secutity measures by ion contzollers ang, Measures, es and poo

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