Draft Partial Amendment of Patent Law Released


In volume 9, issues No. 8 and 10 of IPR News, we have previously discussed briefly the most recent draft amendments to the Trademark Law and the Copyright Law, made to satisfy requirements for Taiwan's entry to the WTO. Here we will briefly describe the draft partial amendment of the Patent Law, which passed first reading in the Legislative Yuan on June 26, 2000:
a. Simplify the requirement that in a joint application, each and every one of the multiple parties involved must sign all documents.

b. Introduce a "local priority" system: where an applicant files an application for a patent, if it then makes additions or improvements to the same invention within a certain period of time, it may file a new application and claim the earlier priority date as the base date for assessment of the patent.

c. Introduce an "early publication" system: following an application for a patent, the contents of the application will be publicized after a certain period, so as to avoid commercial uncertainties and replicated research. Through publication of new technology, industries will be able to obtain new information a lot faster.

d. Specify the timing for applicants to make additions and revisions: additions and revisions to patent applications should not alter the substance of the application. Since the early publication system is being introduced, the timing for making additions and revisions will also be changed. Accordingly, after considering such examples as Japan's Patent Law, the present amendments now specify the timing and criteria for making additions and revisions after filing the application, during the examination, and after the examination result is gazetted.

e. Binding power of dismissal of an objection or petition: where an objection or petition has been dismissed, then even if this decision has not been affirmed, no one may make a fresh petition in respect of the same facts and evidence.

f. Decriminalization of patent offences: the present draft does not include any amendments to punitive provisions of the Patent Law. However, 45 members of the Legislative Yuan led by Mr Chen Hsueheng have proposed decriminalization of patent offences. It remains to be seen what the Legislative Yuan will ultimately decide.

專利程序審查基準即將公告 

經濟部智慧財產局繼研提「專利程序審查基準」草案後，為博徵建言，陸續於日前舉辦三次公聽會，除提出「專利程序審查基準」草案修正版,並將其公佈於該局網站，俾廣納雅言，以為公告版本之參酌。
按我國專利法，除規定授予專利權、撤銷專利權之程序及實體條件外，也規定專利權變動及專利權管理事項，因此專利法本身既為實體法，亦為程序法。無論是專利之初審
、再審查、異議或舉發，均與專利之程序審查有密切關聯，依「先程序後實體」之原則，合於程序審查者，始為進入實體審查之先決條件。
而所謂程序審查係檢視各種申請文件是否合於專利法及專利法施行細則之規定，尤其是新申請案，其申請文件中之申請書、說明書、必要圖式、宣誓書及申請權證明書等文件是否齊備，牽涉到申請日之認定，因我國專利法對於專利之申請採先申請主義，申請日之認定必然影響到實體審查對新穎性、進步性之判斷時點，申請日之認定無疑是程序審查之主要重點所在。因此，雖然專利法並無程序審查專章，但是專利審查之過程無疑就是程序審查與實體審查之結合，程序審查在整個專利法的實施與運作中，有極重要的作用。
因此，前揭草案即係以程序審查應遵循之原則及相關事項，就實務處理上應有之共通標準，作明確之規範。

Patent Procedure Examination Standards Announced Shortly

After releasing an initial draft of the Patent Procedure Examination Standards, the Intellectual Property Office recently held three symposiums to solicit public comment. It has subsequently produced a revised draft of the Standards, which has been posted on the IPO's website for comment.

The R.O.C. Patent Law not only stipulates the procedures and substantive criteria for granting and revoking a patent, it also regulates changes to and management of patents. This means that the Patent Law is a substantive law as well as a procedural law. The initial examination, the reexamination, the objection and petition concerning a patent application are all closely connected to procedural examination of the patent. Under the principle of "procedural before substantive", only those applications that satisfy procedural examination will be submitted to a substantive examination.The socalled "procedural examination" involves assessing whether all application documents comply with the requirements of the Patent Law and its Enforcement Rules. This is especially important for new applications. Their application forms, specifications, diagrams, oaths and certification of right to make application must all be in order, else it would affect determination of the application date, which is undoubtedly the focus of a procedural examination. Since the R.O.C. Patent Law adopts a firstcome first served system, the determination of application date will inevitably affect the timing for a substantive assessment of novelty and advanc ement. Therefore, even though the Patent Law does not make specific reference to procedural examination, the process of patent examination itself is in fact a combination of procedural and substantive examina tions. Procedural examinations are a very important aspect of the Patent Law's enforcement and operation.

That is why these draft Standards have sought to provide clear guidelines regarding principles and common standards that a procedural examination should follow in practice.

美2000年核發專利件數台灣居第三

我駐美投資貿易服務處引述美國商務部專利暨商標局的最新報告指出，去（2000）年台灣發明人取得美國專利件數高達五千八百零六件，在全球排名高居第三位，僅次於日本與德國，其餘第四至十名，依次是法國、英國、加拿大、南韓、義大利、瑞典、瑞士及荷蘭，前十名亞洲國家占三席，依序是日本、台灣及南韓。 

依該局統計資料披露，美國2000年共核發十七萬六千零八十七件專利，較1999年增加百分之四點一，其中五成五由美國人取得，四成五為外國人所取得。外籍人士2000年取得美國核發的專利中，仍以日本人居第一，共達三萬二千九百二十四件，占美國全年核發專利件數的百分之十八點七；其次是德國，達一萬八百二十二件，占總核發數的百分之六點一。
台灣則高居第三名，2000年共取得美國五千八百零六件專利，占美國全年核發總數的百分之三點三，也比1999年大幅增加一千二百八十件，增幅達百分之二十八點三。 

Taiwan Comes Third in U.S. Patents in Year 2000

According to the most recent report of the U.S. Patent & Trademark Office, last year Taiwanese inventors obtained as many as 5,806 patents in the U.S., ranking third globally after Japan and Germany. The remaining countries in the top ten are respectively France, England, Canada, South Korea, Italy, Sweden, Switzerland and the Netherlands. Three out of the top ten are Asian countries, being Japan, Taiwan and South Korea respectively.
According to statistical information from the said Office, the U.S. granted a total of 176,087 patents in 2000, an increase of 4.1% from the previous year. Out of these, 55% were obtained by U.S. nationals, and 45% by foreign nationals. Japan still ranked first in U.S. patents granted to foreign nationals in 2000 totaling 32,924 patents, or 18.7% of the total number granted by the U.S. that year. It was followed by Germany, totaling 10,822 patents, or 6.1% of the total number granted.
Taiwan ranked third, having obtained 5,806 patents, or 3.3% of the total number granted by the U.S. This was an increase of 1,280 patents, or 28.3%, from 1999.

我國本（九十年）第一季專利及商標申請暨公告案件情形

茲據經濟部智慧財產局統計資料披露，民國九十年一至三月該局受理專利新申請案計14,958件，較去年同期增加8.75%，其中發明案件較上年同期成長近三成左右，新型及新式樣則呈微幅衰退；其中外國人專利新申請案件仍較上年同期增加二成以上，而本國人專利新申請案則微幅減少。至於專利公告核准案件為11,631件，較去年同期上升38.89%，其中發明及新式樣案件均較上年同期成長五成以上，而新型也較上年同期增加近二成。
此外，該局民國九十年第一季受理商標新申請案件共13,154件，較去年同期減少32.94%，而商標公告核准案件計14,061件，則較去年同期成長37.50%。至於商標新申請案前十項商品及服務類別中，均呈下滑趨勢，惟第二十九類食品再次列入前十名，而以第五類醫療用品跌幅較小；另前三名商品及服務類別，仍延續上一季之情形為第九類機械、四十二類服務及第三十五類服務。

Gazetted Patent & Trademark Applications in 1st Quarter of 2001

According to information from the Intellectual Property office, the Office handled 14,958 new patent applications during the period of January to March 2001, an increase of 8.75% from the same period last year. Compared to the same period last year, inventions have increased by close to 30%, while applications for new models and new designs have decreased slightly. The number of new patent applications by foreign nationals continued to increase by more than 20%, while the number of applications by R.O.C. nationals fell slightly. The number of approved and gazetted applications was 11,631, an increase of 38.89% from the same period last year. Out of these, invention and new design patents both increased by more than 50%, while new model patents also increased by close to 20%.

The Office also handled 13,154 new trademark applications during the 1st quarter of 2001, a fall of 32.94% from the same period last year. The number of approved and gazetted applications was 14,061, an increase of 37.50% from the same period last year. New applications in respect of the top ten goods and services all indicated a falling trend, except for Class 29 Foods, which was once more in the top ten, and Class 5 Medical Equipment fell to a smaller extent. The top three goods and services continue the trend of the previous season, being Class 9 Machinery, Class 42 Services, and Class 35 Services.

商標申請新式書表可至智慧局網站下載使用

商標各項申請之新式書表自本（90）年6 月1 日起開始實施，舊書表可延用四個月至9月30 日止，自10 月1日起全面使用新式書表，原舊書表停止使用。新式書表共計二十五種，可至經濟部智慧財產局網站下載使用，
網址：http://www.moeaipo.gov.tw/sub5/sub5-4.html

New Trademark Application Forms can be Downloaded from IPO Website

The new forms for various trademark applications will be in effect from June 1, 2001. The old forms can be used for 4 more months until September 30 of this year, and new forms must be used as from October 1. There are 25 new forms, which can be downloaded from the website of the Intellectual Property Office at 
http://www.moeaipo.gov.tw/sub5/sub5-4.html

申請核驗著作權文件證明書免附樣本

經濟部智慧財產局表示，該局受理「輸出視聽著作及代工鐳射唱片核驗著作權文件證明書」申請案，自本（九十）年五月一日起，原則上免附樣本，必要時始依該局要求送核，又相關申請案及輸出之貨品，仍須填報及壓印來源識別碼（SID CODE）。
原由行政院新聞局執行之錄影節目帶及代工鐳射唱片出口核驗著作權證明書業務，自九十年一月起移撥該局接辦
；是項業務係為避免自我國輸出之視聽著作及代工鐳射唱片在外國構成著作權侵害，並配合行政程序法之施行辦理
。該局九十年第一季辦理核驗著作權文件證明書申請案計3,384件，申請人向該局申辦件數或向各海關核驗中心申辦件數各約占五成。

Sample Not Required for Copyright Certificate

The Intellectual Property office indicated that as of May 1, 2001, in principle it will no longer require a sample to be submitted in an application for "Certi ficate of Copyright in respect of Exported Media Works and OEM Laser Discs". A sample is to be submitted only if specifically required by the IPO. However, the SID Code must still be filled in on the relevant application, as well as stamped on the exported products.

The assessment of Certificates of Copyright in respect of videotapes and OEM laser discs was originally undertaken by the Government Information Office, but was transferred to the IPO as of January 2001. The purpose of this assessment is to prevent media works and OEM laser discs exported by Taiwan from infringing copyright overseas. It is conducted in coordination with the Administrative Procedures Law. The number of applications handled by the IPO during the 1st quarter of 2001 was 3,384. Half of the applications were made with the IPO, while the other half were with various customs assessment centers.

我廠商赴國外參展被控侵害智財權

邇來我廠商參加國外商展，迭有涉嫌侵害智慧財產權而遭控告，以致影響展出及國家形象。駐蘇黎士台北貿易辦事處協助我廠商參加2001年3月22日至29日瑞士巴塞爾(BASEL)鐘錶珠寶展表示，有未參展廠商在參展刊物上登廣告被控仿冒商標，或其他侵犯他人智財權的情事發生。
另我駐漢堡辦事處指出，2001年3月22日至28日德國漢諾威電腦展，我參展廠商計有六百多家，為地主德國以外之最大參展國；惟有廠商於展覽期間涉及專利侵權行為而遭控告，被德國地方法院強制執行「撤除」展品。該辦事處於展覽期間亦分別邀請律師事務所人員，前往我國展覽館廠商攤位協助可能發生之智財權問題。
多年來，我政府不餘遺力保護智財權，惟要杜絕仿冒，除了政府部門勤查嚴懲外，全民也應建立並踐行尊重他人的智財權。

Taiwanese at Overseas Exhibition Prosecuted for IPR Infringement

Recently some Taiwanese businesses participating in exhibitions overseas have been prosecuted for infringement of intellectual property rights, which seriously affects the exhibition and our national image.
The Taipei Trade Office based in Zurich had assisted Taiwanese businesses to participate in the Clocks & Jewelry Exhibition in Basel, Switzerland between March 22 and 29, 2001. The Office indicated that some nonparticipating companies were prosecuted for trademark infringement by running advertisements on exhibition materials, and there were also some other incidents of intellectual property right infringements.

The R.O.C. Trade Office in Hamburg also indicated that approximately 600 Taiwanese companies participated in the Computer Exhibition in Hanover from March 22 to 28, 2001. Taiwan had the largest number of participants second to the host country Germany. However, during the exhibition certain companies were prosecuted for patent infringements, and were compulsorily required by the German District Court to "remove" the exhibited products. The Trade Office in Hamburg had arranged for attorneys to assist Taiwanese businessses at the exhibition with potential IPR issues.

For many years the R.O.C. Government has been striving to protect intellectual property rights. However, in order to stamp out counterfeiting activities, not only must governmental departments be thorough in enforcement, the public must also truly respect others' intellectual property rights.