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| 八卷十六期 89年08月31日 |
本 期 提 要HEADLINES |
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法 規 報 導 Laws and Regulations 1.專利異議、舉發、依職權審查基準自本（八十九）年七月十日起施行 經濟部智慧財產局研擬之專利異議、舉發、依職權審查基準，於本（八十九）年七月十日起施行。該基準闡明、規範下列事項：(1)相關法令意旨(2)異議人及舉發人資格、異議及舉發期間、利害關係之審理(3)提起異議、舉發之事由、依職權審查之事由及時機(4)異議、舉發理由與證據之記載及補正(5)一事不再理原則(6)異議、舉發、依職權審查之處理，包括ヾ答辯ゝ審查人員之指定、迴避ゞ審查之書面審理、合理程度之證據調查及闡明權之行使等基本原則々異議、舉發審查及依職權審查階段當事人到局面詢，為必要之實驗、補送模型或樣品、實施勘察及說明書、圖式或圖說之補充修正、更正等行為ぁ論理法則、自由心證及經驗法則等證據法則あ證據能力與證據力之判斷、書證之查證及新證據與補強證據之判斷等證據之調查採證ぃ異議、舉發、依職權審查之審定、原審定被撤銷後之重為審定、審查確定及依職權撤銷確定之效果。異議、舉發、撤銷確定與專利侵害訴訟之關係。 Patent Opposition, Cancellation, and Ex officio Examination Standards Enforced On 10 July 2000, regulations governing the examination standards of patent opposition, cancellation and ex officio actions which were drafted by the Intellectual Property Office were enforced. The regulations clarify and govern the following matters: a. Intent of related laws and regulations; b. Qualifications of opposition petitioners and cancellation petitioners; time periods for opposition and cancellation actions; determination of concerned parties, c. Grounds for instituting opposition and cancellation actions, grounds and timing for review of ex officio actions; d. Recording and amendment of reasons and evidence for opposition and cancellation actions; e. Principle of non-repetition; f. Examination matters for opposition, cancellation, and ex officio actions, including: i. defense statements; ii. designation and withdrawal of examiners; iii. written statements of examination reasons, examination investigation, right of clarification; iv. questioning of parties at the IPO; submission of patent models and samples for experimentation; amendment and correction of diagrams; v. evidentiary standards; vi. determination of evidence; vii. re-examination of invalidation decisions; affirmed examinations; relationship between affirmed invalidation decisions and patent infringement litigation. 2.因應新訴願法，申請人及智慧局應配合辦理之事項 本刊為服務讀者，曾於八卷十三期刊載經濟部因應八十九年七月一日施行訴願新制，而訂定之訴願案件閱卷、陳述意見及言詞辯論等三種新增程序之作業要點。經濟部智慧財產局並於日前因應前揭作業要點，擬訂請商標、專利申請人及該局配合辦理之相關事項如下： (1)提出訴願書及其補正有關事項： ヾ八十九年七月一日起，訴願書正、副本均向該局遞送，不需將副本另送經濟部。 ゝ訴願書未附理由者，經該局轉送經濟部後，由經濟部依據訴願法第六十二條規定通知限期補正，補正時，訴願理由書正、副本均送該局，俾便該局提出答辯。 ゞ委任代理人提起訴願者，應逐案檢附代理人委任書正本，未附委任書者，應依經濟部指定期限補正之。 え為便利各方作業，請於訴願書正、副本均提供附件，如訴願書係以word電子檔作成，宜併請提供同內容之磁片連同上開書件送局，或另以e-mail註明送件人及日期傳送該局相關信箱。 ぉ為免延誤通知補正之時效，該局將設專人收受處理訴願案。 お對於當事人向該局為「不服之表示」（非書明為「訴願」者），該局將先請當事人闡明是否提起訴願之意。 か訴願書雖有程序不合之情形，但其已附理由者，該局仍將依法依自省程序處理。 が經濟部撤銷原處分時，該局將遵照訴願決定書指定之期間重為處分，該局重為之處分書並將副本送經濟部。 IPO Issues Rules on Administrative Appeals The IPR News in Volume 8, No. 13 reported on the 1 July 2000 implementation by the Ministry of Economic Affairs (MOEA) of a new system to govern administrative appeals. Pursuant to the new system, the MOEA drafted 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 MOEA's Intellectual Property Office (IPO) recently issued the following rules applicable to patent and trademark applications and to the IPO relating to these new regulations: a. Appeal applications and amendments i. As of 1 July 2000, originals and copies of appeal applications must be submitted directly to the IPO. It is not necessary to submit copies separately to the MOEA. ii. After the IPO forwards application which do not contain statements of reasons to the MOEA, the MOEA will according to Article 62 of the Law of Administrative Appeal notify applicants to amend the applications. Upon amendment, the original and copies of statements of reasons must be submitted to the IPO to enable the IPO to provide a written response. iii. Appeal applications filed by agents must include original powers of attorney. Applications without powers of attorney must be amended within the time period specified by the MOEA. b. Attachments to originals and copies of the appeal application if composed in Word-format files must be submitted on computer disk with the application to the IPO or sent by e-mail to the IPO with the name of the sender and date of transmission. c. In order to avoid making timely notification of deadlines for amendments, the IPO shall designate a person charged with accepting appeal applications. d. The IPO will take the initiative to ask the parties whether they have the intention of filing an appeal if the parties are not satisfied with IPO decisions. e. If an appeal application is not in conformance with procedural requirements but includes a statement of reasons, the IPO will still accept the application under its own legal procedures. f. When the MOEA invalidates a decision, the IPO shall comply with the time designated in the appeal decision to make another decision on the matter. The IPO shall forward a copy of the subsequent decision to the MOEA. 3.智慧局重申專利法施行細則第十四條第一項規定 按依專利法及專利法施行細則規定之申請，所應備具之文件，概需用國文，其科學名詞之譯名並應附註外文原名。譯名經國立編譯館編譯者，應以該譯名為準。為該細則第十四條第一項所明定；惟邇來，常有日本申請案提出時未依法將姓名翻譯為繁體中文，據此，經濟部智慧財產局於日前表示，有關日本申請人、發明（創作）人之姓名應翻譯為繁體中文再行提出申請，倘仍摻雜有日文漢字未依規定中譯者，必要時該局將逕行更正以繁體中文鍵檔，以確保電腦檔案資料正確性。 IPO Requires Japanese Names on Patent Applications Written in Complex Chinese Characters The Patent Law and the Patent Law Enforcement Rules provide that documents required to be submitted with patent applications must be written in Chinese. Moreover, applications which include translated scientific terms must also include the original terms in the foreign languages. In addition, the standards set by the National Institute for Compilation and Translation shall apply to determine the correct translation of foreign terms. This is provided in Paragraph 1 of Article 14 of the Patent Law Enforcement Rules. Recently, however, applications from Japan are often not in accordance with the law because names are not translated into complex Chinese characters. Because of this situation, the Intellectual Property Office recently announced that the names of Japanese applicants and inventors must be translated into complex Chinese characters. If Japanese characters can not be written in Chinese according to the regulations, the IPO when necessary shall upon its own initiative change a Chinese character key, so as to ensure that the information in a computer file is correct. 4.智慧局研擬專利審查基準「（發明新型）說明書及圖式之補充修正、更正」草案 經濟部智慧財產局於日前擬具專利審查基準「（發明新型）說明書及圖式之補充修正、更正」草案，並於本（八十九）年八月卅一日召開公聽會。該草案釋明、規範如下事項： (1)相關專利法第44條第1項、4項、45條第2項、67條、73條及105條等規定意旨之闡明。 (2)審定公告前補充修正及審定公告後補充修正、更正相關如下事項之闡明、規範： ヾ補充修正、更正之時機ゝ得補充修正、更正之事項ゞ實質變更之判斷々補充修正、更正之效果ぁ審查上應注意之事項。 IPO Releases Draft Regulations on Patent Application Supplements, Amendments, and Corrections The Intellectual Property Office recently released draft examination standards governing the supplement, amendment, and correction of specifications and drawings in invention patent and new utility model patent applications. A public hearing regarding these draft standards was scheduled for 31 August 2000. The draft standards govern the following items: a. Clarification of the intent of the following Patent Law articles: 44-1; 44-4; 45-2; 67; 73 and 105. b. Supplement, amendment, and corrections made prior or after patent applications are approved and published: i. Timing of the supplement, amendment, or correction. ii. Items that may be supplemented, amended, or corrected; iii. Determination of substantial changes; iv. Effect of supplement, amendment, or correction; v. Items of importance during examination. 司 法 報 導 Judicial Report 5.八十九年四至六月侵害著作權判決確定案件，判處一年以上人數計五十九人 根據法務部統計資料披露，八十九年四至六月台灣各地方法院暨分院檢察署執行違反著作權法案件裁判確定有罪人數共189人，其中判處六月以下者120人、逾六月一年未滿者9人、一年以上二年未滿者59人。 Courts Sentence 59 Persons to Terms of One Year or More in Copyright Cases During Second Quarter of 2000 According to statistics released by the Ministry of Justice, from April through June 2000, 189 persons were convicted of Copyright Law violations in affirmed judgments under indictments issued by Taiwan district court prosecutors. Of these 189 persons, 120 received prison terms of six months or less. Nine persons were sentenced to at least six months but no more than one year, and 59 persons were sentenced to at least one year but no more than two years. 6.八十九年五月份侵害智慧財產權判決確定案件判處一年以上者有十五人 依據法務部統計資料指出，八十九年五月我國法院對於侵害著作權、商標專用權或專利權判決確定案件，被告共220人，其中判處有期徒刑、拘役或罰金之有罪科刑判決共105人；有罪科刑判決中，處六月以下者75人（含涉美案件5人），處逾六月一年未滿者5人，處一年以上二年未滿者15人，處拘役者7人。 Courts Sentence 15 Persons to at Least One Year in IPR Cases in May 2000 According to statistics released by the Ministry of Justice, of 220 defendants in copyright, trademark, and patent infringement cases in May 2000, 105 persons were sentenced to jail terms, received detention or were fined. Of the defendants sentenced to jail terms, 75 persons were sentenced to less than six months. Of these 75 persons, 5 were convicted of infringing U.S.-owned intellectual property. Five persons were sentenced to no less than six months but no more than one year while 15 persons were sentenced to no less than one year but no more than two years. Seven persons received detention. |