十卷六期 910331

本 期 提 要HEADLINES

1.我與薩爾瓦多間相互保護智財權協定,自民國91年3月1日起生效

經濟部智慧財產局於日前公告「中華民國與薩爾瓦多共和國間相互保護智慧財產權協定」,自民國九十一年三月一日起生效。依該協定,中薩雙方所代表領域之自然人及法人,在其個別領域提出之發明專利、新型專利、新式樣專利、商標、服務標章、或團體標章之申請案,基於互惠原則,於向另一方提出該申請時,享有優先權,但其優先權日不得早於九十一年三月一日。

Taiwan & El Salvador Sign Intellectual Property Right Protection Agreement

The Intellectual Property Office of the MOEA recently published the "Republic of China and Republic of El Salvador Agreement on Intellectual Property Right Protection", which took effect on March 1, 2002.  Under the said Agreement, natural and juridical persons from one party's territories shall enjoy a right of priority when applying for an invention, new utility model or new design model patent, or trademark, service mark or association mark within the other party's territories, if it has already filed an application in its home country.  However, the date of such right of priority must not be earlier than March 1, 2002. 

2.  在「布吉納法索」國家申請商標及專利登記之相關資訊

茲據我駐布吉納法索大使館函報,在布國境內的外國公司擬申請該國商標或專利,可逕向該國「商業、企業推廣暨手工藝部」所屬「法規暨工業財產司」提出申請。 

而在該國境外的外國公司則需透過代理人辦理申請,惟目前布國並無專業法律事務所可辦理代理申請業務。布國「法規暨工業財產司」建議,可透過歐洲法律事務所向位於喀麥隆首都Yaound市之「非洲智慧財產組織」(電話:237-2205700, 2203911,電傳:237-2205721, 2205727)提出商標或專利申請;如一旦獲准,可同時在該組織包括布國在內十六個會員國受到保護。 

Applying for Trademark & Patent in Burkina Faso

According to information provided by the Embassy of Republic of China in Burkina Faso, foreign companies located within Burkina Faso intending to apply for trademark or patent in the said country can apply directly to the "Bureau of Laws & Industrial Property" under the country's "Ministry for Promotion of Trade, Commerce and Handicraft". 

Foreign companies located outside Burkina Faso must file applications through an agent.  However, the country currently does not have any professional law offices providing such patent agent services.  Therefore, Burkina Faso's "Bureau of Laws & Industrial Property" suggests that trademark or patent applications may be filed through European law offices to the "African Intellectual Property Association" located at Yaound, the capital of Cameron (Tel: 237-2205700, 2203911; Fax: 237-2205721, 2205727).  If approved, the trademark or patent will be protected in the 16 member countries of the said Association, including Burkina Faso.

3.  智慧局研商專利法制

緣經發會之共同意見中,將「健全智財權審查機制」一項列入,要求加強智慧財產權保障,加速建立創新環境及健全智慧財產權之審查機制;又多數意見亦有「加速智財權除罪化,塑造公平競爭環境,專利法、著作權法及智慧財產法儘速除罪化」一項,建議專利刑罰應除罪化。另知識經濟發展方案對於專利法制中,領證後異議制度及新型專利採形式審查已列管,並應於九十一年六月完成修法。 

而經濟部智慧財產局為配合經發會決議,前所研擬之專利法修正草案,行政院業於九十年十一月二十八日函請立法院審議,惟立法院第四會期未完成審議,依立法院職權行使法第十三條「每屆立法委員任期屆滿時,尚未議決之議案,下屆不繼續審議」規定,未完成審查之法案,均視同廢棄,需重新送請立法院審議。故行政院於日前指示各部會,凡涉經發會法案應於四月底前,將該法案送行政院審查,五月送立法院審議。緣此,該局特於日前召開專利法修正研商會議,以研擬專利法修正草案。

IPO Discussions on Patent Laws

The Economic Development Advisory Conference (EDAC) had listed "a sound intellectual property right examination system" as one of its joint resolutions, which demanded that intellectual property right protection should be enhanced, and establishment of a pro-innovation environment and sound IPR examination system should be accelerated.  Majority resolutions also included "accelerating decriminalization of intellectual property infringements, create an environment of fair competition, decriminalization of patent law, copyright law and intellectual property law infringements".  In addition, the "knowledge economy development proposal" has already included in its agenda reviews of the post-grant objection system and examination as to form of new utility model patents.  A complete draft of the amendments should be completed by June 2002. 

In accordance with the EDAC resolutions, the IPO has prepared draft amendments to the Patent Law and submitted them to the Legislative Yuan on November 28, 2001 for consideration.  However, consideration of the draft was not completed by the end of the 4th session of the Legislative Yuan.  Under Article 13 of the Legislative Yuan Exercise of Powers Law, "upon the expiry of term for members of the Legislative Yuan, unconsidered bills will not be considered in the following term".  Therefore, bills whose review was not completed in the relevant term are deemed abandoned, and must be resubmitted to the Legislative Yuan for consideration.  Accordingly, the Executive Yuan has recently instructed relevant ministries that EDAC-related bills be submitted to the Executive Yuan by the end of April, and submitted to the Legislative Yuan by the end of May.  For this reason, the IPO has especially called a Patent Law amendment meeting, so as to discuss amendments to the Patent Law.

4.  專利師法草案

經濟部智慧財產局為健全專利代理制度及保障申請人權益、及按九十年八月經發會有關「加強智財權保障、加速建立創新環境及儘速通過專利師法草案」之共同意見、與依專利法第十二條第四項「專利師之資格及管理,另以法律定之;法律未制定前,依專利代理人規則辦理。」之規定,爰參照其他專門職業及技術人員管理法規,擬具「專利師法」草案,並舉行公聽會,以博徵建言。 

該草案(公聽會版本)共五章計四十四條條文,規範如下事項(1)專利師之積極與消極資格要件及請領專利師證書之程序。(2)專利師之職前訓練、執業登錄、執業方式、業務範圍及執業應遵行事項等有關專利師執業及責任事宜。(3)專利師公會之組織及人民團體主管機關對公會之指導及監督事項。(4)明定專利師應付懲戒之事由及其懲戒程序與處分方式、懲戒委員會組織及未具專利師資格者擅自執業之處罰。(5)為建立國家專技人員考選制度,及顧及本法施行前依專利代理人規則領有專利代理人證書者之工作權,明定專利代理人得繼續辦理專利代理業務,以資救濟,並明定相關管理事項。

Draft Patent Agent Law

In order to design a comprehensive patent agent system and to protect the rights and interests of patent applicants, the IPO has prepared a draft Patent Agent Law and held a public hearing to solicit comments on the draft.  The draft was based on the joint resolution by the EDAC in August 2001 concerning "strengthening intellectual property right protection, creating an innovations-friendly environment, and passing the draft Patent Agent Law as soon as possible", as well as the provision in Paragraph 4, Article 12 of the Patent Law which stipulated: "The qualifications and management of patent agents shall be separately stipulated by law; prior to such stipulation, patent representative regulations shall apply."  The Patent Agent Law has been drafted having reference to the management regulations applying to other professional and technical personnel. 

The said draft contained 5 chapters, with a total of 44 articles, and regulates the following matters: (1) the active and passive criteria for patent agent qualifications, as well as procedures for applying for patent attorney certificate; (2) pre-practice training, registration, manner of practice, scope of practice, practice regulations, and other matters concerning patent agent practice and responsibilities; (3) organization of patent agent association, and instruction and supervision of the association by the competent authority on public associations; (4) penalties applicable to patent agents, and their causes and procedures; organization of the penalties committee, as well as penalty applicable to practicing without patent agent qualifications; (5) stipulate that patent representatives may continue to handle patent matters, in order to establish a formal examination system for professional and technical personnel, and protect the practice rights of patent representatives who have obtained practice certificates prior to enforcement of this Law.

5.  智慧局公告排除電子簽章法適用之事項名稱及法律依據

經濟部智慧財產局於民國九十一年三月二十一日公告,依專利法、商標法、著作權法、著作權仲介團體條例及積體電路電路布局保護法等之申請及其他程序等事項,排除電子簽章法之適用,相關詳細資料,請參http://www.moeaipo.gov.tw/news/ShowNewsContent.asp?otype=1&postnum=1143&from=board

IPO Announces Exclusions of Electronic

Signatures Law

On March 21, 2002 the IPO announced that the Electronic Signatures Law will not apply to applications and other procedures under the Patent Law, Trademark Law,Copyright Law, Copyright Intermediary Organizations Regulations, and Integrated Circuits Layout Protection Law.  Details can be found at the following website:

http://www.moeaipo.gov.tw/news/ShowNewsContent.asp?otype=1&postnum=1143&from=board.

6.  台灣各地方法院檢察署九十年下半年辦理侵害智財權案件情形

茲據法務部高檢署統計資料,將九十年下半年侵害智慧財產權案件辦理情形分述如下:

1.  九十年七月至十二月偵辦侵害智慧財產權案件情形:

(1) 偵查新收2,725件,比八十九年七月至十二月減少901件;以罪名分析,此類案件大多為違反著作權法,計2,004件佔73.54%,違反商標法488件,佔17.91%,違反專利法233件,佔8.55%。

(2) 偵查終結2,784件,(被告3,500人),比八十九年七月至十二月減少958件(被告減少1,068人),其中起訴被告1,503人,佔偵查終結被告人數42.94%﹔起訴案件有具體求刑者35件,佔起訴件數2.66%。

(詳細資料如附表一)

2.  九十年七月至十二月侵害智慧財產權案件裁判確定及執行情形:

(1) 裁判確定被告人數1,622人,比八十九年七月至十二月增加171人,其中判決一年以上者200人,一年以下逾六月者69人,六月以下705人,拘役87人,罰金28人,科刑率為67.14%,比八十九年七月至十二月之61.75%,增加5.39%。(詳細資料如附表二)

(2) 已執行判決有罪案件602件,被告640人(比八十九年七月至十二月增加147件,被告增加165人),其中判決有期徒刑及拘役得易科罰金者508件(被告544人),執行結果,准易科罰金繳清者482人,佔得易科罰金人數88.60%,不准易科罰金者6人,佔得易科罰金人數1.10%。(註:全部己執行有罪案件准易科罰金者佔得易科罰金總人數72.01%,不准易科罰金者僅佔0.19%)。(詳細資料如附表三)

Prosecution of IPR Infringement Cases by District Courts in 2nd Half of 2001

According to statistics released by the Senior Prosecutors Bureau of the Ministry of Justice, intellectual property right infringement cases during the 2nd half of 2001 are currently as follows:

1. Investigation of IPR infringement cases from July to December, 2001:

(1) There were 2,725 new cases, representing a decrease of 901 cases compared to the same period in 2000; most of the cases were infringements of Copyright Law, totaling 2,004 cases (73.54%), while the remaining consisted of 488 Trademark Law infringement cases (17.91%) and 233 Patent Law infringement cases (8.55%).

(2)  Investigation was concluded in respect of 2,784 cases (3,500 defendants), representing a decrease of 958 cases (1,068 defendants) compared to the same period in 2000; amongst them, 1,503 defendants were indicted, representing 42.94% of the total number of defendants investigated.  35 cases were indicted with subsequent convictions, representing 2.66% of the indicted cases.

(See Table 1 for details)

2.  Affirmed and enforced IPR infringement cases from July to December, 2001:

(1) Judgments were affirmed in respect of 1,622 defendants, representing an increase of 171 persons compared to the same period in 2000.  Amongst these, 200 defendants were sentenced to imprisonment for one year or more, 69 to imprisonment for more than 6 months but less than 1 year, 705 to imprisonment for less than 6 months, 87 defendants were sentenced to detention, 28 were fined.  The conviction rate was 67.14%, representing an increase of 5.39% from 61.75% in the same period in 2000.

(See Table 2 for details)

(2) Sentences have already been carried out in respect of 602 convicted cases (640 defendants), representing an increase of 147 cases (165 defendants) compared to the same period in 2000. Amongst these, 508 cases were enforced for 544 defendants sentenced to six months or under, or detention. In these cases, defendants could apply to convert their sentences to fines. Of these cases, 482 persons (88.60%) were allowed to convert their sentences to fines, while 6 persons (1.10%) were denied..(Note: For all criminal cases in the same period, 72.01% of defendants were eligible to convert sentences and only 0.19% of applications to convert sentences were denied.

(See Table 3 for details)