Chapter I
General Provisions
Article 1
Purpose
This Act is enacted for the encouragement, protection and utilization of
creations of inventions, utility models and designs in order to promote
the development of industry.
The term "patent" referred to in this Act is classified into the following three
categories:
1.
invention patents;
2.
utility model patents;
and
3.
design patents.
The "competent authority" as referred to in this Act is the Ministry of
Economic Affairs (hereinafter as
the MOEA).
Patent affairs shall be administrated by a specific agency appointed by the
MOEA.
A patent application filed by a foreign applicant shall not be accepted if the
home country of such foreign applicant is not a signatory to an international
treaty for protection of patent right to which the Republic of China (ROC) is a
signatory, or if the home country does not conclude with the ROC a treaty or
an agreement for reciprocal protection of patent rights, or if no patent
protection agreement is concluded by and
between organizations or institutions of the ROC and said foreign country
which has been approved by the competent authority, or if the laws of said
foreign country do not accept patent applications filed by nationals of the
ROC.
The term "right to apply for a patent" shall mean the right to file a patent
application in accordance with the provisions of this Act.
Subject to provisions in this Act otherwise provided for or the covenants
otherwise set forth in an agreement, the term "the owner of the right to apply
for a patent" shall mean an inventor, utility model creator, designer or
his/her assignee or successor.
The right to apply for a patent or the patent right is both assignable and
inheritable.
The right to apply for a patent shall not be taken as the subject of a pledge.
In the case of taking a patent right as the subject of a pledge, the pledgee
shall not be allowed to exploit the patent right, unless it is otherwise
provided for in an agreement.
Where an invention or a utility model or a design is made by an employee in
the performance of his/her job duties, the right to apply for a patent and the
patent right thereof shall be vested in his/her employer and the employer
shall pay the employee reasonable remuneration; where there is an
agreement providing otherwise, such agreement shall prevail.
The phrase "an invention, or a utility model or a design made by an
employee under the performance of his/her job duties" as set forth in the
preceding paragraph shall mean the invention, utility model, or design
completed by an employee in performing his/her job duties during the
period of his/her employment.
Where a fund provider engages another party to conduct research and
development, the ownership of the right to apply for a patent and the patent
right in connection with the outcome of such research and development shall
be vested in the party as mutually agreed upon in an agreement between
both parties, or such right shall be vested in the inventor, utility model
creator or designer in the absence of such covenant in the agreement.
However, the fund provider shall be entitled to exploit such invention,
utility model or design.
Where the ownership of the right to apply for a patent and the patent right
are vested in the employer or the fund provider under Paragraph 1 or the
preceding paragraph, the inventor, utility model creator or the designer
concerned shall be entitled to a right to have his/her name shown as such.
Where an invention, utility model or design made by an employee has no
connection to the performance of his/her job duties, the right to apply for
a patent and the patent right for such invention, utility model or design shall
be vested in the employee. However, if such invention, utility model or
design is made through utilization of the employer's resources or experience,
the employer may, after paying the employee a reasonable remuneration,
exploit the invention, utility model or design concerned in its enterprise.
Upon completion of an invention, utility model or design by an employee,
which has no connection to the performance of his/her job duties, the
employee shall give his/her employer notice in writing of such event and
shall inform his/her employer of the process of the innovation, if necessary.
If the employer fails to raise any objection to the employee within six months
after receiving the employee's written notice under the preceding paragraph,
the employer shall not claim that such invention, utility model or design was
made by the said employee in the performance of his/her job duties.
An agreement concluded between an employer and an employee as stated in
the preceding Article, based on which the employee is precluded from
enjoying his/her legitimate rights and interests in respect of his/her
invention, utility model, or design shall become void.
Where an agreement has been reached by an employer and its employee
regarding a dispute over attribution of rights as set forth in Articles 7 and
8 of this Act, the employer or employee concerned may file an application
along with relevant evidentiary documents with the Specific Patent Agency
for change of ownership of the right involved. The Specific Patent Agency
may, as it deems necessary, notify the parties involved to submit documents
relevant to any mediation, arbitration or court judgment rendered in
accordance with other
laws and regulations.
An applicant, holder or other interested person may designate an agent to file
patent applications or handle patent-related matters on his/her
behalf.
An applicant, holder or other interested person who has no domicile or
business establishment in the territory of the ROC shall designate an agent
to file patent applications or handle patent-related
matters on his/her behalf.
Eligible agents shall be limited to patent attorneys, unless otherwise
provided for by laws and regulations.
The qualification and administration of patent attorneys shall be prescribed
by separate laws.
Where a right to apply for a patent is jointly owned by two or more persons,
the patent application related thereto shall be filed by all the joint
applicants.
Where two or more persons engage in any patent-related procedure other
than filing a patent application, each of them may complete such procedure
independently, except for making a withdrawal or an abandonment of a
patent application, filing a divisional application or a converted application,
or taking other actions for which this Act requires execution by all the joint
applicants. However, if a representative is designated by a mutual covenant
of all the joint applicants, such covenant shall prevail.
In the case of an event requiring execution of all the joint applicants as set
forth in the preceding two paragraphs, one of the joint applicants shall be
appointed as the recipient of service of documents. In the absence of such a
representative, the Specific Patent Agency shall name the first-listed joint
applicant as the recipient of service of documents and shall advise other
joint applicant(s) of such service matters.
Where the right to apply for a patent is jointly owned, the right to apply for
the patent shall not be assigned or abandoned without the consent of all joint
applicants.
Where the right to apply for the patent is jointly owned by two or more
persons, none of the joint applicants shall assign his/her own share therein
to a third party without the consent of other joint applicant(s).
Where one of the owners of the right to apply for the patent abandons
his/her own share, this share shall be vested in other joint owner(s).
In the case of an inheritance or assignment of the right to apply for a patent,
the successor or the assignee shall have no locus standi against any third
party unless the patent application has been filed in the name of the
successor or the assignee at the time of filing, or a request has been filed
thereafter with the Specific Patent Agency for recordation of change in
applicant.
The request referred to in the preceding paragraph, whether for assignment
or inheritance,
shall be accompanied by evidentiary documents.
While serving with the Specific Patent Agency, a staff member or a patent
examiner shall not apply for a patent or receive any rights or interests in
connection with such patent directly or
indirectly, except for inheritance.
Staff members or patent examiners of the Specific Patent Agency are
obligated to keep confidential any invention, utility model, or design, or
the trade secrets of an applicant, which have become known to or been
possessed by them in the course of performing their duties; whoever
violates
such obligation shall bear relevant legal responsibility.
The qualification of patent examiners shall be
prescribed separately by laws.
Under any of the following circumstances, a patent examiner shall exclude
himself/herself from performing the duties concerned:
1. where, for a concerned patent case, the patent examiner or his/her spouse
is the patent applicant, patentee, invalidation petitioner, patent agent, or a
partner of the said patent agent or a person having employment relationship
with the patent agent;
2. where, for a concerned patent case, the patent examiner is presently related
to the patent applicant, patentee, invalidation petitioner or the patent agent
by consanguinity within the fourth degree or by affinity within the third
degree;
3. where, for a concerned patent case, the patent examiner or his/her spouse
and the patent applicant, patentee or invalidation petitioner are common
obligee(s), obligor(s), or debt-paying obligor(s);
4. where the patent examiner is or was the legal representative, the family
head or a household member of the patent applicant, patentee or
invalidation petitioner;
5. where the patent examiner is or was a litigation agent of the patent
applicant, patentee or invalidation petitioner, or is or was the assisting
party thereof; or
6. where, for a concerned patent case, the examiner is or was a witness,
an expert witness, an opposition
petitioner or an invalidation petitioner.
Where an examiner should have but did not exclude himself/herself from
performing his/her functions, the Specific Patent Agency may, upon r
equest or on its own authority, revoke the measure(s) already taken and
adopt an alternative measure instead.
Unless otherwise provided in this Act, where a person filing a patent
application or taking other proceeding in connection with patent matters
has failed to comply within a statutory or specified time limit, the
application filed or the proceeding initiated by
him/her shall be dismissed. However, if the delay in not acting within a
specified time limit has been corrected before the dismissal is rendered by
the Specific Patent Agency, such application or proceeding shall still be
accepted.
If the delay is caused by natural calamity or other cause(s) not attributable
to the applicant, the applicant may, within thirty days after cessation of
such cause, request with the Specific Patent Agency stating the cause(s) for
delay and requesting for reinstatement. An application for reinstatement
shall not be accepted if delay has exceeded one year from the expiration
of a statutory time limit.
While applying for reinstatement, the applicant shall concurrently complete
the application that should have been fulfilled by him/her within the
concerned time limit.
The preceding two paragraphs shall not apply to a delay beyond the time
limits as set forth in each of Paragraph 4 of Article 29, Paragraph 4 of Article
52, Paragraph 2 of Article 70, Paragraph 4 of Article 29 applicable mutatis
mutandis under Article 120, Paragraph 4 of Article 52 applicable mutatis
mutandis under Article 120; Paragraph 2 of Article 70 applicable mutatis
mutandis under Article 120; Paragraph 4 of Article 29 applicable mutatis
mutandis under Paragraph 1 of Article 142; Paragraph 4 of Article 52
applicable mutatis mutandis under Paragraph 1 of Article 142 and Paragraph
2 of Article 70 applicable mutatis mutandis
under Paragraph 1
of Article
142.
Where an examination decision or any other document cannot be served,
such decision or document shall be published in the Patent Gazette and
shall be deemed having been duly served thirty days after the date of
publication.
Application for patent and other relevant proceedings may be effected by
means of electronic communications, of which the implementation shall be
prescribed by the competent authority.
The duration of relevant time periods as specified in this Act shall not