本 期 提 要HEADLINES
New Administrative Appeal System Implemented
On 1 July 2000, the Ministry of Economic Affairs (MOEA) implemented a new system to govern administrative appeals. (The MOEA is in charge of appeals regarding intellectual property cases from the Intellectual Property Office.) The MOEA had already drafted new regulations governing procedures for appeals within the MOEA for three new types of administrative appeal procedures: review of files, statement of oral opinions, and oral arguments. The matters governed by these regulations are handled by the MOEA Appeal Review Committee.
Under the new appeal procedures, appeal applicants must submit an original and a copy of a written application to the MOEA though the government agency which executed the original administrative act. (It is not necessary to submit a copy separately to the MOEA.) The MOEA will, according to Article 62 of the Law of Administrative Appeal, notify applicants to amend applications if the applications do not contain statements of reasons. Applicants must submit amended original and copies of applications containing statement of reasons through the government agency which executed the original administrative act. The MOEA will then issue a written response. Appeal applications filed by agents must include powers of attorney. Such applications without powers of attorney must be amended. The only restriction on the form of the power of attorney is that the power must state that the agent is authorized for the case. The power of attorney does not have to be notarized.
The MOEA regulations regarding administrative appeal review of files provide as follows:
Pursuant to Articles 49 and 75 of the Law of Administrative Appeal, appellants, participating parties, and agents of appellants may make separate applications to the MOEA to request to review, manual copy, photocopy, or photograph documents in appeal files, or to request to review, manual copy or photocopy the evidence on which the government agency which made the original administrative act based its decision. The MOEA, however, will not allow the release of documents in files if the government agency which made the original administrative act clearly indicates in accordance with law that the files contain confidential information not for public disclosure.
The rights of third parties to request to review, manual copy, photocopy, or photograph documents in appeal files shall be handled in accordance with Article 50 of the Law of Administrative Appeal. Thus, third parties must attach to their applications evidence of the appellants' consent or establish their legal interest in the appeals.
The MOEA in accordance with Article 51 of the Law of Administrative Appeal shall refuse requests to review the following documents: documents provided for the decision of the administrative appeal; preparatory documents and deliberation documents for the decision of administrative appeals; documents which must be kept confidential to protect the rights and interests of third parties; and other documents which must be kept confidential according to law or the public interest.
The MOEA regulations regarding administrative appeal statement of oral opinions provide as follows:
When the MOEA believes that a statement of oral opinions is necessary for an understanding of an appeal or to advance the deliberations of the appeal, the MOEA may, according to paragraph 2 of Article 63 of the Law of Administrative Appeal, notify the appellant, participating party, or interested party to be present at a designated place on a specific date for a statement of oral opinions.
The appellant or participating party may, according to paragraph 3 of Article 63 of the Law of Administrative Appeal, attach reasons applying for statement of oral opinions. However, the MOEA may reject such an application if the MOEA believes that the application does not have proper reasons, including:
a) Does not provide reasons for appeal;
b) Does not provide reasons for statement of oral opinions;
c) Application for items in a statement of oral opinions has no relationship to the details of the appeal;
d) The details of the case are already clear and a statement of oral opinions is not necessary;
e) The applicant without reason is not present at the designated place for statement of oral opinion, does not file a proper application to change the time, and thereafter files another application for statement of oral opinion; and
f) Other reasons such as under Article 103 of the Law of Administrative Procedure.
Appellants, participating parties, interested parties and their agents attending statements of oral opinions may not request to audio record or video record the proceedings.
The MOEA regulations regarding administrative appeals oral arguments provide as follows:
The MOEA may on an ex officio basis when it considers it necessary to require oral arguments in administrative appeal cases. In such instances, the MOEA may notify the appellant, participating party or its resentative, agent of appellant, assistant of appellant, and the government agency which executed the original administrative act to send persons to be present at a designated place on a specific date for oral arguments. The appellant and participating party may also apply for oral arguments. The MOEA may grant such application if it determines oral arguments are necessary. The MOEA may reject such applications with reasons for the refusal.
Persons that may participate in oral arguments include the MOEA administrative appeal committee members and related persons, representatives of the government agency which executed the original administrative act and personnel from related agencies, the appellant, participating party or its representative, agent of the appellant, assistant of appellant and other persons notified to appear.
IPO Issues Opinion an Exhibition Sponsored or Approved by the Government
A dispute has recently arisen regarding whether the annual computer exhibition held in Taiwan falls within Article 20 of the Patent Law as an "exhibition sponsored or approved by the government". Article 20 provide that inventions displayed at such exhibitions shall not be considered ineligible for patent protection. The Intellectual Property Office recently issued the following opinion on the issue:
a. The Paris Convention provides that in order for inventions displayed at exhibition to be eligible for six months, the exhibitions must be sponsored or approved by the government where the exhibition is taking place and must be open to international participation. The majority of countries follow this requirement, including Germany, France, Great Britain, the European Patent Office, and mainland China. Japan, besides adhering to the requirements of the Paris Convention, also provides the status of government approval for exhibitions that are organized by local public associations.
b. In order to conform with the principles of reciprocity, fairness and internationalization, the provision regarding "exhibition sponsored or approved by the government" in Taiwan's Patent Law is based on the provision of the Paris Convention. Thus, in order to use the provision in Article 20, the exhibition must be arranged or sponsored by a government agency, or organized under the direction of a government agency.
c. The products publicly displayed for sale at the exhibition are considered to have been put to use in accordance with the language "have been published or put to public use" of Article 20-1-1 of the Patent Law (and article 98-1 and 107-1 of the Patent Law). Therefore, the exhibitions mentioned in Article 20-1-3 do not include exhibitions staged for the public sale of products.
d. The computer exhibition sponsors this time, the China External Trade Development Council and the Computer Association, were not official agencies under the supervision of the Legislative Yuan. Lacking government approval, the exhibition therefore does not qualify to use this provision.
IPO Announces ROM Chip Mark Enforcement Plan
In order to strengthen the system of chip marking, the Intellectual Property Office recently announced the ROM Chip Marking Enforcement Plan and approval of chip marking registration organizations.
The Enforcement Plan is being promoted to the public on the IPO's website. The principle components of the plan include details on chip marking and chip marking registration. The main purposes of the chip marking system is that by imbedding registered identification numbers on read-only memory chips, the designers and manufacturers of chips will be able to be identified, thereby allowing the origin of the chips to be traced.
The Enforcement Plan provides that the IPO authorizes the Taiwan Institute of Economic Research and the Chinese Institute for Industry to handle chip marking registration for two years.
Taiwan semiconductor manufacturers on 7 July 1999 began chip marking regulations in the spirit of self-regulation. Official implementation of chip marking registrations starts on 1 July 2000.
To assist enforcement of the Enforcement Plan, the IPO has drafted a mask-ROM chip marking self-regulation agreement and invited chip manufacturers to sign the agreement. In addition, the Board of Foreign Trade will soon amend the Commodity Export Management Regulations to provide that ROM chip exports must be marked. Related regulations on export controls will also be announced. When Mask-ROM chips are exported, manufacturers must include the chip marking registration certificate number on export declarations. Agencies charged with enforcement may order manufacturers to produce registration certificates for inspection by customs.