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Laws & Regulations Database of The Republic of China (Taiwan)

Print Time:2024/05/21 21:38
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Chapter Law Content

Title: PATENT ACT CH
Category: Ministry of Economic Affairs(經濟部)
Chapter 1 General Provisions
Article 1
Purpose
This Patent Act is formulated to encourage, protect and utilize the creations of invention, utility model and design in order to promote industrial development.
Article 2
Categories of patents
The term "patent" referred to in this Act is classified into the following three types:
1. invention patent;
2. utility model patent; and
3. design patent.
Article 3
Competent authority
The "competent authority" referred to in this Act is the Ministry of Economic Affairs (hereinafter referred to as “the MOEA”).
Patent affairs shall be administrated by a specific agency appointed by the MOEA.
Article 4
Acceptance of foreign application
A patent application filed by a foreign applicant shall not be accepted if the home country of such foreign applicant is not a signatory to an international treaty for protection of patent right to which the Republic of China (ROC) is a signatory, or if the home country does not conclude with the ROC a treaty or an agreement for reciprocal protection of patent rights, or if no patent protection agreement is concluded by and between organizations or institutions of the ROC and said foreign country and approved by the respective competent authorities, or if the laws of said foreign country do not accept patent applications filed by ROC nationals.
Article 5
Right to apply for patent
The term "right to apply for a patent" shall mean the right to file a patent application in accordance with this Act.
Subject to provisions of this Act otherwise prescribed or the covenants otherwise set forth in an agreement, the term "the owner of the right to apply for a patent" shall mean an inventor, a utility model creator, a designer, or the assignee or successor thereof.
Article 6
Transference and pledge of patent
The right to apply for a patent or the patent right is both assignable and inheritable.
The right to apply for a patent shall not be taken as the subject of a pledge.
In the case of taking a patent right as the subject of a pledge, the pledgee shall not be allowed to exploit the patent right, unless it is otherwise provided for in an agreement.
Article 7
Invention made in the performance of duties
Where an invention, a utility model or a design is made by an employee in the course of performing his/her duties, the right to apply for a patent and the patent right thereof shall be vested in his/her employer and the employer shall pay the employee reasonable remuneration; where there is an agreement providing otherwise, such agreement shall prevail.
The so-called "an invention, a utility model or a design made by an employee in the course of performing his/her duties" as set forth in the preceding paragraph shall mean the invention, utility model, or design completed by an employee in the course of performing his/her duties during the period of employment.
Where a fund provider appoints another party to conduct research and development, the ownership of the right to apply for a patent and the patent right in connection with the outcome of such research and development shall be vested in the party as mutually agreed upon in an agreement between both parties, or such rights shall be vested in the inventor, utility model creator or designer in the absence of such agreement. However, the fund provider shall be entitled to exploit such invention, utility model or design.
Where the ownership of the right to apply for a patent and the patent right are vested in the employer or the fund provider pursuant to Paragraph 1 or the preceding paragraph, the inventor, utility model creator or designer concerned shall be entitled to a right to have his/her name shown as such.
Article 8
Invention irrelevant to the performance of duties
Where an invention, utility model or design made by an employee has no connection to the course of performing his/her duties, the right to apply for a patent and the patent right for such invention, utility model or design shall be vested in the employee. However, if such invention, utility model or design is made through the utilization of the employer's resources or experiences, the employer may, after paying the employee a reasonable remuneration, exploit the invention, utility model or design concerned in the enterprise.
Upon completion of an invention, utility model or design which has no connection to the course of an employee’s performing his/her duties, the employee shall give the employer a written notice regarding such event, and shall also inform the employer of the creative process, if necessary.
If the employer fails to raise any objection to the employee within six (6) months after receiving the employee's written notice under the preceding paragraph, the employer shall not claim that such invention, utility model or design was made by the said employee in the course of performing his/her duties.
Article 9
Protection of employees’ legitimate rights
An agreement concluded between an employer and an employee as stated in the preceding article, based on which the employee is precluded from enjoying legitimate rights and interests in respect of his/her invention, utility model, or design, shall be void.
Article 10
Agreement on ownership
Where an agreement has been reached by an employer and its employee regarding a dispute over attribution of right(s) as set forth in Articles 7 and 8 of this Act, the employer or employee concerned may file a request along with relevant document(s) of proof with the Specific Patent Agency for change of ownership of the right(s) involved. The Specific Patent Agency may, as it deems necessary, notify the parties involved to submit document(s) relevant to any mediation, arbitration or court judgment rendered in accordance with other laws and regulations.
Article 11
Patent agency
An applicant may designate an agent to file patent applications and handle patent-related matters on his/her behalf.
An applicant who has no domicile or business establishment in the territory of the ROC shall designate an agent to file patent applications and handle patent-related matters on his/her behalf.
Eligible agents shall be limited to patent attorneys, unless otherwise provided for by laws and regulations.
The qualification and administration of patent attorneys shall be separately prescribed by laws.
Article 12
Joint application
Where a right to apply for a patent is jointly owned, the patent application related thereto shall be filed by all the joint owner(s).
Where two or more persons engage in any patent-related procedure other than filing a patent application, each of them may complete such procedure independently, except for making a withdrawal or an abandonment of a patent application, filing an application for division or conversion, or taking other actions for which this Act requires joint execution. However, if a representative is designated by a covenant, such covenant shall prevail.
In the case of an event requiring joint execution as set forth in the preceding two paragraphs, one of the joint owners shall be appointed as the recipient of service of documents. In the absence of such recipient, the Specific Patent Agency shall name the first-listed joint owner as the recipient and shall notify other (s) of such service matters.
Article 13
Joint ownership of the right to apply for patent
Where the right to apply for a patent is jointly owned, the right to apply for the patent shall not be assigned or abandoned without the consent of all joint owners.
Where the right to apply for a patent is jointly owned by two or more persons, none of the joint owners shall assign his/her own share therein to a third party without the consent of other joint owners.
Where one of the owners of the right to apply for a patent abandons his/her own share, this share shall be vested in other joint owner(s).
Article 14
Recordation to have Locus standi against a third party: transference of right to apply for patent
In the case of an inheritance or assignment of the right to apply for a patent, the successor or the assignee shall have no locus standi against any third party unless the patent application has been filed in the name of the successor or the assignee at the time of filing, or a request has been filed thereafter with the Specific Patent Agency for altering the recordation of applicant.
The request referred to in the preceding paragraph, whether for assignment or inheritance, shall be accompanied by document(s) of proof.
Article 15
Duty of confidentiality of staff members and patent examiners
While serving in the Specific Patent Agency, staff members or patent examiners shall not apply for a patent or receive any rights or interests in connection with such patent directly or indirectly, except for inheritance.
Staff members or patent examiners of the Specific Patent Agency are obligated to keep confidential any invention, utility model, or design, or the trade secrets of an applicant which have become known to or been possessed by them in the course of performing their duties; whoever violates such obligation shall bear relevant legal responsibilities.
The qualification of patent examiners shall be prescribed separately by laws.
Article 16
Avoiding conflict of interests by patent examiners
Patent examiners shall exclude themselves from any of the following circumstances:
1. where, for a concerned patent case, the patent examiner or his/her spouse is the patent applicant, patentee, invalidation requester, patent agent, a partner of the said patent agent or a person having employment relationship with the patent agent;
2. where, for a concerned patent case, the patent examiner is presently related to the patent applicant, patentee, invalidation requester or the patent agent by consanguinity within the fourth degree or by affinity within the third degree;
3. where, for a concerned patent case, the patent examiner or his/her spouse and the patent applicant, patentee or invalidation requester are co-obligee(s), co-obligor(s), or debt-paying co-obligor(s);
4. where, for a concerned patent case, the patent examiner is or was the legal representative, the family head or a household member of the patent applicant, patentee or invalidation requester;
5. where, for a concerned patent case, the patent examiner is or was the litigation agent or the assisting party of the patent applicant, patentee or invalidation requester; or
6. where, for a concerned patent case, the patent examiner is or was a witness, an expert witness, an opposition requester or an invalidation requester.
Where a patent examiner should have but did not exclude himself/herself from performing his/her duties, the Specific Patent Agency may, upon request or on its own authority, revoke the measure(s) already taken and adopt an alternative measure instead.
Article 17
Delay and reinstatement
Unless otherwise provided in this Act, where a person filing a patent application or taking other proceedings in connection with patent-related matters has failed to comply within a statutory or specified time period, the application filed or the proceeding initiated shall be dismissed. However, if the delay of not acting within a specified time period has been remedied before the dismissal decision is served by the Specific Patent Agency, such application or proceeding shall still be accepted.
If the delay of a statutory time period is caused by natural calamity or other cause(s) not attributable to the applicant, the applicant may, within thirty (30) days after cessation of such cause, file a written request with the Specific Patent Agency stating the cause(s) for delay and requesting for reinstatement. An application for reinstatement shall not be accepted if the delay has exceeded one (1) year after expiration of the statutory time period.
While requesting for reinstatement, the applicant shall concurrently fulfill all obligations that should have been fulfilled within the concerned time period.
The preceding two paragraphs shall not apply to a delay of the time limits as set forth in Paragraph 4 of Article 29, Paragraph 4 of Article 52, Paragraph 2 of Article 70, Paragraph 4 of Article 29 applicable mutatis mutandis under Article 120, Paragraph 4 of Article 52 applicable mutatis mutandis under Article 120; Paragraph 2 of Article 70 applicable mutatis mutandis under Article 120; Paragraph 4 of Article 29 applicable mutatis mutandis under Paragraph 1 of Article 142; Paragraph 4 of Article 52 applicable mutatis mutandis under Paragraph 1 of Article 142, and Paragraph 2 of Article 70 applicable mutatis mutandis under Paragraph 1 of Article 142.
Article 18
Service by publication
Where an examination decision or any other document(s) cannot be served, such decision or document(s) shall be published in the Patent Gazette and shall be deemed to have been served thirty (30) days after publication.
Article 19
E-filing
Application for patent and other relevant proceedings may be processed electronically; the implementation of which shall be prescribed by the competent authority.
Article 20
Calculation of time periods
The duration of relevant time periods as specified in this Act shall not include the beginning date thereof.
The duration of the patent right as specified respectively in Paragraph 3 of Article 52, Article 114 and Article 135 of this Act shall start to run from the filing date of the patent application concerned.
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