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

Print Time:2024/05/21 20:54
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Chapter Law Content

Title: PATENT ACT CH
Category: Ministry of Economic Affairs(經濟部)
Chapter III Utility Model Patent
Article 104
Definition
"Utility model" means the creation of technical ideas relating to the shape or structure of an article or combination of articles, utilizing the laws of nature.
Article 105
Statutory exclusion
A utility model patent shall not be granted if it is contrary to public order or morality.
Article 106
Filing date
An application for a utility model patent shall be filed with the Specific Patent Agency by the owner of right to apply for a patent by providing a request form, a description, claim(s), an abstract, and drawing(s).
The filing date of a patent application for utility model shall be the date on which the request form, description, claim(s), and drawing(s) are provided in full.
Where an applicant does not provide a description, claim(s) and drawing(s) in Chinese at the time of filing, but in a foreign language, and where the Chinese translation for the said documents is provided within the time period specified by the Specific Patent Agency, the filing date shall be the date on which the foreign language version is originally provided.
Where the Chinese translation is not provided within the specified time period as stated in the preceding paragraph, the patent application shall be dismissed; however, if the Chinese translation is provided before the dismissal decision is served, the date on which the Chinese translation is provided shall be regarded as the filing date, and the foreign language version shall be deemed not to have been provided.
Article 107
Divisional application of utility model patent
A patent application for utility model which substantially contains two or more utility models may, upon notice by the Specific Patent Agency or upon request by the applicant, be divided into two or more divisional applications.
A request for division shall be filed within the time periods specified below:
1. prior to the rendering of a decision on the original utility model application; or
2. within three (3) months after the date on which an approval decision on the original utility model application is rendered.
Article 108
Conversion of application
Where a patent application originally filed for invention or design is converted into a patent application for utility model, or where a patent application originally filed for utility model is converted into a patent application for invention, the filing date of the original patent application shall be deemed to be the filing date of the converted patent application.
A request for patent conversion shall not be made under any of the following circumstances:
1. after a written decision allowing the original patent application is served;
2. two (2) months after the date on which a written decision rejecting the original patent application for invention or design is served; or
3. thirty (30) days after the date on which a written decision rejecting the original patent application for utility model is served.
A converted patent application shall not extend beyond the scope of content disclosed in the description, claim(s), or drawing(s) of the original patent application as filed.
Article 109
Amending patent application
When conducting formality examination of a patent application for utility model, the Specific Patent Agency may, upon request or by ex officio, notify the applicant to amend the description, claim(s) or drawings within a specified time period.
Article 110
Foreign language documents
The description, claim(s), and drawing(s) of an application for utility model that are provided in a foreign language pursuant to Paragraph 3 of Article 106 shall not be amended.
The Chinese translation provided pursuant to Paragraph 3 of Article 106 shall not extend beyond the scope of content disclosed in the original foreign language documents as filed.
Article 111
Decision of Formality Examination
Upon completion of the formality examination of a patent application for utility model, a written decision shall be rendered and served on the applicant.
When a patent application for utility model is determined to be unpatentable after formality examination, the reason(s) therefor shall be given in the written decision.
Article 112
Formality examination
A patent application for utility model undergoing formality examination shall be rejected under any of the following circumstances:
1. where the utility model does not relate to the shape, structure of an article or combination of articles;
2. where there is a violation of Article 105;
3. where there is a violation of Paragraph 4 of Article 26, applicable mutatis mutandis under Article 120;
4. where there is a violation of Article 33, applicable mutatis mutandis under Article 120;
5. where the description, claim(s), or drawing(s) does not disclose the essential matters or the disclosure therein is obviously unclear;
6. where an amendment obviously extends beyond the scope of content disclosed in the description, claim(s) or drawing(s) as filed.
Article 113
Grant of patent; publication
A claimed utility model shall be patented if, after formality examination, there is no event negating its patentability, and the claim(s) and the drawing(s) thereof shall be published.
Article 114
Patent term
The term of a utility model patent shall expire after a period of ten (10) years starting from the filing date.
Article 115
Request for technical evaluation report
After a patent application for utility model is published, any person may file a request with the Specific Patent Agency for a technical evaluation report of utility model patent.
The Specific Patent Agency shall publish in the Patent Gazette the request for the technical evaluation report of utility model patent.
The Specific Patent Agency shall assign a patent examiner to issue the technical evaluation report of utility model patent, and the report shall bear the name of the assigned patent examiner.
In regard of the request filed pursuant to Paragraph 1, the Specific Patent Agency shall issue the technical evaluation report of utility model patent with respect to matters set forth in Subparagraph 1, Paragraph 1, Paragraph 2 of Article 22, applicable mutatis mutandis under Article 120, Article 23, applicable mutatis mutandis under Article 120, and Article 31, applicable mutatis mutandis under Article 120.
In regard of a request for the technical evaluation report of utility model patent made pursuant to Paragraph 1, if stated therein that the utility model patent is commercially exploited by a party other than the patentee and if relevant document(s) of proof is provided, the Specific Patent Agency shall issue the technical evaluation report of utility model patent within six (6) months.
Request for a technical evaluation report of utility model patent can still be filed after the utility model patent has become extinguished.
Request filed pursuant to Paragraph 1 shall not be withdrawn.
Article 116
Presentation of technical report
When exercising a utility model patent, the patentee shall not make a warning without presenting the technical evaluation report of utility model patent.
Article 117
Liability of damages; immunity
Where a utility model patent is revoked, the patentee shall be liable for the damages suffered by another person due to the patentee’s exercise of utility model patent right prior to its revocation. The above shall not apply if such exercise is based on the content of the technical evaluation report of utility model patent and carried out with due care.
Article 118
Post-grant amendment of utility model patent
With the exception to the situation set forth in Paragraph 3 of Article 74, applicable mutatis mutandis under Article 120, the patentee requesting to amend a utility model patent shall do so only within the time periods specified below:
1. a request for technical evaluation report of the utility model patent is pending.
2. a litigation case involving the utility model patent is pending.
Article 119
Grounds for invalidation action against utility model patent
Any person may request for an invalidation action against a utility model patent with the Specific Patent Agency under any of the following circumstances:
1. where there is a violation of Article 104, Article 105, Paragraph 3 of Article 108, Paragraph 2 of Article 110, Article 22 applicable mutatis mutandis under Article 120, Article 23 applicable mutatis mutandis under Article 120, Article 26 applicable mutatis mutandis under Article 120, Article 31 applicable mutatis mutandis under Article 120, Paragraph 4 and the forepart of Paragraph 6 of Article 34 applicable mutatis mutandis under Article 120, Paragraph 2 of Article 43 applicable mutatis mutandis under Article 120, Paragraph 3 of Article 44 applicable mutatis mutandis under Article 120, Paragraphs 2 to 4 of Article 67 applicable mutatis mutandis under Article 120 of this Act;
2. where the home country of the patentee does not accept patent applications filed by ROC nationals; or
3. where there is a violation of Paragraph 1 of Article 12, or where the utility model patentee is not the owner of the right to apply for a utility model patent.
An invalidation action based on Subparagraph 3 of the preceding paragraph shall only be filed by the interested party.
With respect to the ground(s) for an invalidation action against a utility model patent, the provisions in effect at the time of the said patent being approved shall govern. However, if an invalidation request is filed based on violation of the ground(s) under Paragraph 3 of Article 108, Paragraph 4 and the forepart of Paragraph 6 of Article 34 applicable mutatis mutandis under Article 120, Paragraph 2 of Article 43 applicable mutatis mutandis under Article 120, or Paragraph 2 and paragraph 4 of Article 67 applicable mutatis mutandis under Article 120, the provisions in effect at the time of filing the said request shall govern.
A written decision on an invalidation action shall bear the names of the patent examiners.
Article 120
Provisions applied mutatis mutandis to utility model patent
Article 22, Article 23, Article 26, Articles 28 to 31, Article 33, Paragraphs 3 to 7 of Article 34, Article 35, Paragraphs 2 and 3 of Article 43, Paragraph 3 of Article 44, Paragraph 2 of Article 46, Paragraph 2 of Article 47, Article 51, Paragraphs 1, 2 and 4 of Article 52, Paragraphs 1, 2, 4 and 5 of Article 58, Article 59, Articles 62 to 65, Article 67, Paragraphs 2 and 3 of Article 68, Article 69, Article 70, Articles 72 to 82, Articles 84 to 98, and Articles 100 to 103 shall apply mutatis mutandis to utility model patent.
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