Chapter III
Utility Model Patents
"Utility model" means the creation of technical ideas relating to the shape or
structure of an article or combination of articles, utilizing the laws of
nature.
A utility model patent shall not be granted in respect of utility model which
is contrary to public order or morality.
An application for a utility model patent shall be filed with the Specific
Patent Agency by the person entitled to applying for patent by submitting
a request, a
description, claim(s),
an abstract, and drawing(s).
The filing date of a utility model patent application shall be the date on
which the request,
description, claim(s), and drawing(s) are submitted in full.
Where an applicant does not submit a description, claim(s) and drawing(s)
in Chinese at the time of filing, but in a foreign language, and where the
Chinese translation for the said documents is submitted within the time
limit specified by the Specific Patent Agency, the filing date shall be the date
on which the foreign language version were originally
submitted.
Where the Chinese translation is not submitted within the specified time limit
as stated in the preceding paragraph, the patent application shall be
dismissed; however, if the Chinese translation is filed prior to the dismissal
decision is received, the date on which the Chinese translation is filed shall
be regarded as the filing date, and the foreign language version shall be
deemed not having been submitted.
For a utility model patent application which substantially contains two or
more utility models, the said utility model patent application may, upon
notice by the Specific Patent Agency or upon request by the applicant, be
divided into two or more divisional applications.
A divisional application shall be filed before a decision on the original
utility model application is rendered.
Where a patent application originally filed for invention or design patent is
converted into a utility model patent application, or where a patent
application originally filed for utility model patent is converted into an
invention patent application, the filing date of the converted patent
application shall be deemed to have the filing date of the original patent
application.
An application for patent conversion shall not be applied under any of the
following circumstances:
1. where a written decision allowing the original patent application has been
served;
2. where two months have elapsed after serving a decision rejecting the
original
invention or design patent application;
3. where thirty days have elapsed since serving a decision rejecting the
original
utility
model patent application.
A converted patent application shall not extend beyond the scope of content
of the description, claim(s), or drawing(s) of the original patent application
as filed.
When conducting the formality examination of a utility model patent
application, the Specific Patent Agency may, upon request or on its own
initiative, notify the applicant to amend the description, claim(s) or drawings
within a specified time limit.
Article
110 Foreign language documents
Where a utility model patent applicant submits a description, claim(s), and
drawings prepared in a foreign language under Paragraph 3 of Article 106,
such foreign language documents shall
not be amended.
The Chinese translation submitted under Paragraph 3 of Article 106 shall
not extend beyond the scope of content of the original foreign language
documents as filed.
Upon completion of the formality examination of a utility model patent
application, a written decision shall be rendered and served on the
applicant.
When a utility model patent application is determined to be unpatentable,
the reason(s) shall be given in the written decision of formality examination.
Through formality examination, a utility model patent application shall
be rejected under any of the following circumstances:
1. where the utility model does not relate to the shape, or structure of an
article or
combination of articles;
2. where
there is a violation of Article 105;
3. where there is a violation of Paragraph 4 of Article 26, applicable mutatis
mutandis
under Article 120 of this Act;
4. where there is a violation of Article 33, applicable mutatis mutandis under
Article 120 of
this Act;
5. where the description, claim(s), or drawing(s) does (do) not disclose the
essential matters that need to be disclosed, or the disclosure therein is
obviously unclear;
6. where an amendment obviously extends beyond the scope of content
of the
description, claim(s) or drawing(s) as filed.
Where, through formality examination, a claimed utility model shall be
patented if there is no reason for negating its patentability, and the claim(s)
and the drawing(s) of
the patent
application shall be published.
The term of a utility model patent shall expire after a period of ten years from
the filing date of the patent application.
After a utility model patent application is published, any person may file a
request with the Specific Patent Agency for obtaining a utility model patent
technical report.
The Specific Patent Agency shall publish in the Patent Gazette the fact that
the request for obtaining the utility model patent technical report has been
filed.
The Specific Patent Agency shall assign a patent examiner to issue the utility
model patent technical report, and the report shall bear the name of the
above-mentioned examiner.
For request filed under Paragraph 1, the Specific Patent Agency shall issue
the utility model patent technical report with respect to matters set forth in
Subparagraph 1, Paragraph 1 and Paragraph 2 of Article 22, applicable
mutatis mutandis under Article 120, Article 23, applicable mutatis mutandis
under Article 120, and Article 31, applicable mutatis mutandis under Article
120.
For request in obtaining the utility model patent technical evaluation report
as filed under Paragraph 1, if it is stated in the request that commercial
exploit of the utility model patent is made by a party other than the
patentee and if supporting evidence is submitted, the Specific Patent
Agency shall issue the utility model patent technical report within six
months.
Request for obtaining a utility model patent technical evaluation report can
still be filed after
the utility model patent has become extinguished.
Request filed in accordance with Paragraph 1 shall not be withdrawn.
When exercising a utility model patent, the patentee shall present a utility
model patent technical report as warning.
Where a utility model patent is invalidated, the patentee shall be liable for
compensating damages suffered by another person due to the patentee’s
exercise of his/her utility model patent prior to the patent invalidation. The
above shall not apply if the exercised utility model patent is based on the
content of the utility model patent technical report and the patentee has
exercised his/her patent
with due care.
With respect to examination of a request for patent amendment, except for the
situation set forth in Paragraph 1 of Article 77, applicable mutatis mutandis
under Article 120 of this Act, the Specific Patent Agency shall conduct
formality examination of the patent amendment, issue a decision and serve
it
on the patentee.
Through formality examination, a decision rejecting the patent amendment
shall be rejected
under any of the following circumstances:
1. where there
is an event prescribed in Subparagraphs 1 to 5 of Article 112;
2. where the amendment obviously extends beyond the scope of content of
the claim(s)
or drawing(s) as published.
Any person may request for invalidation against a utility model patent with
the Specific Patent
Agency under any of the following circumstances:
1. where there is a violation of Article 104, Article 105, Paragraph 3 of Article
108, Paragraph 2 of Article 110, Article 22 applicable mutatis mutandis
under Article 120, Article 23 applicable mutatis mutandis under Article 120,
Article 26 applicable mutatis mutandis under Article 120, Article 31
applicable mutatis mutandis under Article 120, Paragraph 4 of Article 34
applicable mutatis mutandis under Article 120, Paragraph 2 of Article 43
applicable mutatis mutandis under Article 120, Paragraph 3 of Article 44
applicable mutatis mutandis under Article 120, Paragraphs 2 to 4 of Article
67
applicable mutatis mutandis
under Article 120 of this Act;
2. where the home country of the patentee does not accept the patent
applications filed
by nationals of the ROC;
3. where there is a violation of Paragraph 1 of Article 12, or where the
utility model patentee is not entitled to file the utility model patent
application.
An invalidation request based on Subparagraph 3 of the preceding
paragraph shall only be
filed by the interested party.
With respect to ground(s) of an invalidation request against a utility model
patent, the provisions in effect at the time of said patent approved shall
govern. However, if an invalidation request is filed based on the ground(s)
under Paragraph 3 of Article 108, Paragraph 4 of Article 34 applicable
mutatis mutandis under Article 120, Paragraph 2 of Article 43 applicable
mutatis mutandis under Article 120, or Paragraph 2 and paragraph 4 of Article
67 applicable mutatis mutandis under Article 120, the provisions in effect at
the time of filing said request shall govern.
A written decision on an invalidation request shall bear the names of the
patent examiners.
Article 22, Article 23, Article 26, Articles 28 to 31, Article 33, Paragraphs 3 and
4 of Article 34, Article 35, Paragraphs 2 and 3 of Article 43, Paragraph 3 of
Article 44, Paragraph 2 of Article 46, Paragraph 2 of Article 47, Article 51,
Paragraphs 1, 2 and 4 of Article 52, Paragraphs 1, 2, 4 and 5 of Article 58,
Article 59, Articles 62 to 65, Article 67, Paragraphs 2 and 3 of Article 68,
Article 69, Article 70, Articles 72 to 82, Articles 84 to 98, and Articles 100 to
103 of this Act shall apply mutatis mutandis to utility
model patent.