PATENT Q & A

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  •  1. What is an invention patent?
      Pursuant to the provision of Article 21 of the Patent Act, an invention refers to any creation of technical concepts by utilizing the rules of nature. Thus, it can be defined that an invention is a creation of technical concepts that utilizes the rules of nature to reflect on the application of an article or a method.

     

    2. What is a utility model patent?
      Pursuant to the provision of Article 93 of the Patent Act, a utility model refers to any creation of technical concepts by utilizing the rules of nature, in respect of the form, construction or installation of an article. Thus, it can be defined that a utility model is a creation of technical concepts that utilizes the rules of nature to reflect the innovation of a form, construction, or installation of an article that possesses a new purpose or improved efficacy.

    3. How does one distinguish a design patent from a utility model patent and an invention patent?
      design patent should emphasize the enhancement of its visual effect to visually attract general consumers and to generate purchasing interest. Thus, a design uses the shape, pattern, color, or combination of an article to enhance its quality, affinity, and value through visual effects in order to increase market competitiveness and visual contentment. However, a utility model patent and an invention patent aim to improve an article’s convenience in its function, technique, manufacturing and application.

    4. Can a patent be granted to computer software?
      Yes. Apart from the non-statutory subject matter prescribed under Articles 22 and 23 of the Patent Act, the ROC does not impose limitations on filing computer software related invention patent applications. An invention patent can be filed if the application is a creation of technical concepts by utilizing the rules of nature, in compliance with Article 22 of the Patent Act (having industrial applicability, novelty, and progressive characteristics), and does not violate provisions prescribed under Article 24 of the Patent Act. The approval or rejection of the application should depend on an examination based on the technical disclosure of the specification.

    5. What is a conventional right of priority?
      According to the Patent Act, a patent applicant, who has legally filed his/her first patent application in a member of the World Trade Organization (hereinafter referred to as the "WTO") or in a foreign country which allows ROC nationals to claim priority based on reciprocity and has filed his/her patent application for the same techniques in the ROC within twelve (12) months (six (6) months for a design) from the filing date of his/her first patent application in said foreign country, may claim the filing date of said foreign application as the priority date, and use it as the reference date in determining whether the invention complies with patentability of patents, such as novelty, loss of legal fictitious novelty, inventive step, and first to file.

    6. Can a request for a Technical Evaluation Report be withdrawn?
      A request for a Technical Evaluation Report cannot be withdrawn since the incident of the request for a Technical Evaluation Report will be published in the Official Patent Gazette, in order to protect the interested parties.

    7. How does one maintain the validity of a patent?
      One shall, pursuant to the Patent Act, pay annuities to prevent the rights from extinguishing. If a third person institutes an invalidation action, the statement of defense should not be neglected to prevent revocation.

    8. What is an invalidation proceeding?
      With regards to a patent, if the ownership of the patent is involved, only an interested party may institute an invalidation action. Otherwise, anyone who believes a patent violating the provisions of the Patent Act, may institute an invalidation action, to request for revocation of said patent.

    9. When can an invalidation action be instituted? How should it be done?
      According to Article 67, Article 107 and Article 128 of the Patent Act, an invalidation action may be instituted against an invention, a utility model and a design patent during the valid effect of the patent on principle. An application for an invalidation action shall include reasons and evidence as well as indicate the provisions of the Patent Act based on which the invalidation action is instituted.

    10. If an invalidation action against a patent has become irrevocably sustained, what is the effect of the patent rights thereof?
      After an invalidation action against a patent has become irrevocably sustained, and the patent revoked, the effect of the patent rights thereof shall be deemed non-existing ab initio.

    11. What is revocation of patent ex officio? In which circumstances will the aforesaid be done?
      For a published invention or utility model patent, if TIPO discovers that such patent violates the provisions of the Patent Act and the patent shall not be granted, TIPO shall conduct an examination ex officio. The time for such examination may be, any time from the date of publication of the patent application to the date of revocation of the patent. If reasons for revocation are found as the result of the examination ex officio, a decision to revoke the patent shall be made.

    12. Why may a granted patent be revoked?
      Many requirements shall be met for the granting of a patent, but an application is examined only based on the limited information gathered at the time of the examination, as it is impossible to gather all of the related information. Therefore, the Public Examination System is regulated, in order to remedy the drawbacks thereof. That is to say, a patent granted after an examination, shall be published in the Official Patent Gazette, and any one may obtain detailed information about such patent (via viewing or photocopying). If the ownership of a patent is involved, only an interested party may institute an invalidation action. Otherwise, anyone who believes a patent violates the provisions of the Patent Act, may institute an invalidation action, to request for revocation of said patent.

    13. What is the difference between a patent attorney and a representative receiver?
      A patent attorney, pursuant to the Regulations for Patent Attorneys, is someone who has requested for recordation at TIPO and has obtained the Certificate of Patent Attorney. A representative receiver merely has the rights to receive and acknowledge the documents related to a patent application on behalf of the patentee. Therefore, there is a significant difference between the qualification and rights of a representative receiver and a patent attorney.

    Note: Information extracted from web site of Taiwan Intellectual Proper Office (TIPO) http://www.tipo.gov.tw/en/index.aspx.

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