本 期 提 要 HEADLINES
CEPD Carries Out Cyber Law Amendments
In view of the rapid developments in
Internet-related areas, the “Cyber Law Development Project” Team of
Council for Economic Planning & Development (CEPD) of the Executive
Yuan resolved during its 3rd meeting on May 20, 2002 to place on its
priority for this year amendments to the Trademark
Law, Copyright Law, Telecommunications Law, Computer-Processed
Personal Information Law, and legal provisions within the Criminal
Code in relation to the Internet.
The meeting had also discussed issues related to electronic
contracts and establishment of certification authorities in E-Commerce, as
well as protection for E-Commerce consumers.
In order to
ensure developments of the Internet proceeds rapidly but soundly, the CEPD
has set up a framework for amendment of cyber laws.
The framework will contain 7 principal aspects, being: electronic
government, protection of cyber IP rights, consumer rights protection,
regulation of online monetary transfers, electronic contract laws,
regulation of new cyber crimes, and development of E-Commerce.
The CEPD has indicated that the main
focus of the “Cyber Law Development Project” for this year will be to
amend the 5 major laws that will help to create a more sound cyber
transaction environment. Amongst
them, the Trademark Law and the Telecommunications
Law have been listed as priority amendments for the present session of
the Legislative Yuan. The
competent authorities are currently still drafting amendments to the Copyright Law, Computer-Processed
Personal Information Law, and the Criminal
On the issue of consumer protection for
cyber transactions, Deputy Chair HO Mei-Yue of the CEPD indicated that the
CEPD has already submitted recommendations such as draft amendments to the
Consumer Protection Law, and
matters that should or should not be stipulated in set-form contracts for
consideration by the Consumer Protection Commission.
The Consumer Protection Commission has also indicated that it has
tabled such recommendations for discussion during the Commission’s
meetings on legislative amendments. It
has also recently held a “E-Commerce and Consumer Protection Law
Taskforce” meeting, during which issues such as matters stipulated in
set-form contracts, suitability of contents, and further steps to be taken
There is also the question of legal
liability of ISPs, where cyber criminals utilize their Internet services
for illegal activities. The
Ministry of Justice indicated that it had formed the “Computer
(Internet) Crimes Legislation Taskforce” last year, which would conduct
a comprehensive review of provisions in the currently applicable Criminal
Code concerning cyber crimes. A
preliminary draft of provisions is currently being prepared, and where an
ISP may be considered an accessory to cyber crime, sanctions can be
imposed under the currently applicable Criminal
In respect of protection of privacy
rights, the Ministry of Justice is currently drafting amendments to the Computer-Processed
Personal Information Law. This
Law’s scope of application will be extended to include ISPs, instead of
merely the 8 principal industries.
In August 2000 the Executive Yuan had passed the “Knowledge Economy Development Plan”. One of its 6 main substantive measures was “creating a fundamental environment for Internet applications”. Accordingly the CEPD had produced the “Cyber Law Development Project”, which would help to ensure sound development of the Internet market through a comprehensive review of relevant laws. According to CEPD, the “Cyber Law Development Project” had in 2001 completed enactment of the Electronic Signatures Law and its 3 subsidiary legislations, which would enter into force in April this year. It was a significant landmark in Taiwan’s development of a regulated E-Commerce environment.
七、增訂「為販賣之要約」（offering for sale）亦為專利權效力所及，以符合WTO TRIPS第二十八條規定。
Draft Amendments to Patent Law (Executive Yuan Version)
Law was promulgated by the National Government on May 29, 1944, and
entered into force on January 1, 1949.
Following 7 amendments, the currently applicable Patent Law was reviewed by October 4, 2001 and promulgated by order
of the President on October 24, 2001.
Further, partial amendments for the purposes of Taiwan’s
accession to the WTO was promulgated on May 7, 1997, and had entered into
force on January 1, 2002.
322 joint resolutions achieved by the Economic Development Advisory Board
(EDAC), “a sound intellectual property right examination mechanism”
had been one of them. This
resolution demanded that protection for intellectual property rights be
strengthened, and establishment of an innovations-friendly environment and
creation of a sound IPR examination system be accelerated.
The Executive Yuan had submitted draft amendments to the Patent
Law for review by the Legislative Yuan on November 28, 2001, but the
Legislative Yuan was unable to complete its review during the prevalent
term of its members. Pursuant
to Article 13 of the Legislative
Yuan Exercise of Powers Law, the amendments could not continue to be
reviewed in the subsequent session. As
Taiwan had become a member of the WTO on January 1, 2002 and the Patent
Law is international in character, it is necessary to follow
regulations adopted by other countries closely and to be consistent with
them. Therefore there is a
need to revise the present Patent
Law system, in light of development of domestic businesses,
international legislative trends, and enhancement of patent examination
quality. Accordingly the
Executive Yuan had prepared draft amendments to the Patent
Law, and submitted the same to the Legislative Yuan for review on May
The main points in and reasons for draft amendments to the Patent Law (Executive Yuan version) are as follows:
1.Clearly stipulate how relevant periods under this Law are to be calculated, and amending all “as of the date of” and “as of the following date” in the Law to “as of the date of”. It is also stipulated that in principle the first day will not be included, except where specific provisions apply; for example, the period of subsistence of patent right will commence from the first day.
2.Revise provisions in relation to patent originality, progressive step, and inventiveness.
3.Abolish requirement that payment of patent fees is prerequisite to obtaining the patent filing date. Where the applicant has not paid the fees or has not done so in full, and has failed to make payment upon reminder, the application will not be accepted.
4.Changes are made to the text of provisions in respect of description, supplementation, revision and amendment of claims.
5.Clearly stipulate statutory reasons for not granting a patent.
6.Bases for filing an objection or petition are integrated, so that the objections procedure is abolished. Once a patent application is approved, the applicant will be able to pay the fees and receive the certificate, and will enjoy the patent right as of the gazetted date. Therefore Article 45 of the present Law is deleted, which presently provides that after the approval but prior to receiving the certificate, the patent authorities have the discretion by law to revoke patents that should not have been granted.
7.Insert provision that an “offering for sale” is also within the scope of a patent, so as to comply with Article 28 of the WTO’s TRIPS Agreement.
8.Delete provision that a patent right may be divided after approval. As division of patents after approval require re-examination of whether it exceeds the scope of the original patent, it complicates the examination procedures and result in changes to the patent scope, which affects third parties’ understanding of the scope of the approved patent.
9.Insert provisions concerning petition for examination. Under the existing Law, provisions in relation to objections apply mutatis mutandis to petition examinations. As the present amendments will abolish the objection procedure, it is no longer appropriate to adopt those provisions in relation to petition examinations. Therefore it is necessary to insert separate provisions.
10. Delete provisions in relation to labeling of patented goods and relevant penalties. Since the Criminal Code, Fair Trade Law and the Civil Code already contain sufficient provisions in relation to how patented goods should be labeled, whether such labels are accurate, and whether there are deceptive acts or acts likely to cause detriment to others, it is appropriate to delete Articles 83 and 130 of the present Patent Law.
11. Based on foreign provisions for statutory incentives, the amendments revise provisions in relation to reduction of patent annual fees, so as to effectively encourage natural persons, schools and small to medium businesses to utilize their invention patents and boost innovative developments in Taiwan’s technology industries.
12. Insert provisions that the patent authorities may first examine petitions in infringement litigation.
13. New utility model patents will adopt an examination as to form system. Patent systems in major countries around the world usually adopt an examination as to form system, rather than substantive examination system, in respect of new utility model patents that are technologically less sophisticated. This enables patents to be granted earlier.
14. Insert provisions for new utility model patent technical report. As new utility models will adopt an examination as to form system, rather than conducting substantive examinations as to their originality and inventive step, there will be substantial instability and uncertainty in relation to contents of new utility model patents. Therefore, based on foreign statutory examples, these amendments will introduce a utility model patent technical report system, where anyone may apply to the patent authorities for such a technical report once the new utility model patent is gazetted. Further, in order to prevent new utility model patent owners from abusing their rights under this system and inhibiting third parties’ use of the technology and their research and development, it will be provided that prior to exercising their rights, the new utility model patent owner must produce a copy of the patent technical report issued by the patent authorities.
15. Abolish criminal sanctions for new utility model and new design patents. The present Patent Law has frequently been criticized for decriminalizing infringements of invention patents, but retaining criminalization of new utility model and new design patents. It is generally thought to be unbalanced and irrational to impose criminal liability for infringements of new utility model or new design patents, which are lower in terms of technical expertise, while removing criminal liability for infringements of invention patents. Further, as these amendments will adopt an examination as to form system in respect of new utility model patents, it will be uncertain whether the patent actually possesses all substantive criteria for being granted the patent. If criminal sanctions were imposed, given Taiwanese businesses’ tendency to use criminal sanctions to exert pressure on opponents, they might result in irreparable damage to defendants. Therefore criminal liability for infringements of new utility model and new design patents has now been abolished, so as to eliminate the existing imbalance of penalties and avoid the misuse of criminal proceedings in inhibiting commercial development.
16. Insert transitional provisions. Changes in these amendments, such as abolishment of the objection procedures, adoption of examination as to form for new utility model patents, and introduction of new utility model technical reports, are all major changes to the patent system, and therefore it is appropriate to insert transitional provisions
17. Stipulate that commencement date of the Patent Law amendments should be determined by the Executive Yuan.
Patent Agent Law (Executive Yuan Version)
On May 17,
2002 the Executive Yuan had submitted the draft Patent
Agent Law for review by the Legislative Yuan. The said draft consists of 5 chapters and 42 articles, and
arose from resolution by the August 2001 EDAC to strengthen IPR
protection, accelerate creation of innovative environment, and accelerate
enactment of the Patent Agent Law.
Therefore, pursuant to Paragraph 4, Article 12 of the Patent
Law, which provides that “qualifications and regulation of patent
agents should be separately determined by law; prior to such enactment,
the Patent Agent Regulations shall apply.” Based on regulations applicable to other professional and
technical personnel, the IPO has prepared the draft Patent Agent Law.
Main elements of the draft Patent Agent Law (Executive Yuan Version) are as follows:
1.Active and passive qualifications for patent agents, and procedures for application for patent agent certificate.
2.Professional training, registration, practice, scope of business and business regulations applicable to patent agents.
3.Patent agents may not engage in business activity without entering a patent agent association.
4.Organization of patent agent associations, and matters in which competent authorities for public associations shall instruct and supervise such associations.
5.Stipulate reasons for sanctioning of patent agents, sanction procedures, sanction means, organization of sanctions committee, and sanctioning of persons who practice without holding a patent agent certificate.
6.In order to establish an examination system for national professional and technical personnel, and in order to protect the work rights of persons who had previously been granted a patent agent certificate pursuant to the Patent Agent Regulations, it is stipulated that such patent agents may continue to handle patent agency business. Other relevant matters are also stipulated.