No Support JavaScript

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

Print Time:2024/05/21 21:51
:::

Chapter Law Content

Title: PATENT ACT CH
Category: Ministry of Economic Affairs(經濟部)
Chapter IV Design Patent
Article 121
Definition of design
"Design" means the creation made in respect of the shape, pattern, color, or any combination thereof, of an article as a whole or in part by visual appeal.
For computer generated icons (Icons) and graphic user interface (GUI) applied to an article, an application may also be filed pursuant to this Act for obtaining a design patent.
Article 122
Substantial conditions
A design which is industrially applicable may be granted a design patent upon application in accordance with this Act, provided any of the following does not exist:
1. an identical or similar design was disclosed in a printed publication prior to the filing of the patent application;
2. an identical or similar design was publicly exploited prior to the filing of the patent application; or
3. the design was known to the public prior to the filing of the patent application.
A design that is without the circumstances prescribed in the preceding paragraph but can be easily conceived by a person ordinarily skilled in the art based on prior art shall not be patented.
A disclosure made by or against the applicant’s will shall not be deemed as one of the circumstances that would preclude the grant of an design patent prescribed in the subparagraphs of Paragraph 1 or the preceding paragraph, provided that the concerned patent application is filed within six (6) months after the date of the disclosure.
For the publication in a gazette made in this country or a foreign country in accordance with the laws as the consequence of filing a patent application and made by the applicant’s will, the preceding paragraph is not applicable.
Article 123
Design deemed as lack of novelty
Where a design claimed in a patent application for design is identical or similar to a design disclosed in the description or drawing(s) of an earlier-filed patent application for design which is published after the filing of the later-filed patent application for design, the design patent shall not be granted; however, this shall not apply where the applicant of the later-filed patent application for design is also the applicant of the earlier-filed patent application for design.
Article 124
Statutory exclusion
A design patent shall not be granted in respect of any of the following:
1. the shape of an article solely dictated by its function;
2. fine arts;
3. the layout of integrated circuits and electronic circuits; or
4. an article contrary to public order or morality.
Article 125
Filing date
A patent application for design shall be filed with the Specific Patent Agency by the owner of the right to apply for a patent by providing a request form, description and drawing(s).
The filing date of a patent application for design shall be the day on which the request form, description and drawing(s) are provided in full.
Where an applicant does not provide a description 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 for design shall be dismissed; however, if the Chinese translation is provided prior to 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 126
Disclosure
The description and drawing(s) shall fully disclose the design in a manner clear and sufficient for it to be understood and carried out by a person ordinarily skilled in the art of the design.
The manners of disclosure for description and drawing(s) shall be prescribed in the Enforcement Rules of the Patent Act.
Article 127
Application and restriction of derivative design patent
For two or more similar designs owned by the same person, applications may be filed for a design patent and its derivative design patent(s).
The filing date of a patent application for derivative design shall not be earlier than the filing date of the original patent application for design.
A patent application for derivative design filed after the publication of the original design patent is not acceptable.
An applicant shall not file a patent application for derivative design patent if the design therein is only similar to another derivative design patent but not to the original design patent.
Article 128
First-to-file principle
Where two or more patent applications are filed for the same or similar design(s), only the earlier-filed application can be granted. The above shall not apply if the priority date claimed for the later-filed application is earlier than the filing date of the earlier application.
Where the filing date and the priority date referred to in the preceding paragraph are the same, the applicants shall be notified to reach an agreement with respect to the matter concerned. If such an agreement cannot be reached, none of the applications shall be granted. If the said patent applications are filed by the same applicant, the applicant shall be notified to select one patent application within a specified time period; failure to make a selection within the time period shall result in the rejection of all such patent applications.
While the applicants concerned are in the process of reaching an agreement, the Specific Patent Agency shall require that these applicants report the results of the negotiation within an appropriate time period. If the said report is not provided within the specified time period, it shall be deemed that the agreement has not been reached.
The above three paragraphs shall not apply to any of the following:
1. the applications for the original design and its derivative design(s); or
2. the applications for two or more derivative designs that originate from the same design.
Article 129
Unity; design for a set of articles
An application for a design patent shall relate to one design.
Two or more articles belonging to the same class and are customarily sold or used together may be filed as one design.
A patent application for design shall indicate the article to which the design is applied.
Article 130
Division of application
A patent application for design that substantially contains two or more designs 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 made before a reexamination decision on the original application is rendered.
Examination of a divisional patent application shall resume the completed procedure of the original patent application.
Article 131
Conversion between design patent and derivative design patent
Where a patent application for design is converted into a patent application for derivative design or where a patent application for derivative design is converted into a patent application for design, the filing date of the original patent application shall be deemed to be the filing date of the converted patent application.
A request for the conversion shall not be made under any of the following circumstances:
1. after a written decision allowing the original application is served; or
2. two (2) months from after the date on which a written decision rejecting the original application is served.
A converted patent application for design or derivative design shall not extend beyond the scope of content disclosed in the description or drawing(s) of the original application as filed.
Article 132
Conversion into design patent
Where an application originally filed for invention or utility model patent is converted into a patent application for design, the filing date of the original application shall be deemed to be the filing date of the converted patent application for design.
A request for the 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 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, claims, or drawings of the original patent application as filed.
Article 133
Foreign language documents
The description and drawing(s) provided in a foreign language pursuant to Paragraph 3 of Article 125 shall not be amended.
The Chinese translation provided pursuant to Paragraph 3 of Article 125 shall not extend beyond the scope of content disclosed in the original foreign language documents as filed.
Article 134
Grounds for rejection decision
When a patent application for design is in violation of any of the provisions set forth in Articles 121 to 124, Article 126, Article 127, Paragraphs 1 to 3 of Article 128, Paragraphs 1 and 2 of Article 129, Paragraph 3 of Article 131, Paragraph 3 of Article 132, Paragraph 2 of Article 133, Paragraph 4 of Article 34 applicable mutatis mutandis under Paragraph 1 of Article 142, Paragraph 2 of Article 43 applicable mutatis mutandis under Paragraph 1 of Article 142, and Paragraph 3 of Article 44 applicable mutatis mutandis under Paragraph 1 of Article 142 of this Act, a decision of rejection shall be rendered.
Article 135
Patent term of design patent
The term of a design patent shall expire after a period of fifteen (15) years from the filing date of the application. A derivative design patent shall expire simultaneously with the original design patent.
Article 136
Effects of design patent right
Unless otherwise provided in this Act, the patentee of a design patent has the exclusive right to prevent others from exploiting the design or similar design(s) without the patentee’s consent.
The extent of the protection conferred by a design patent shall be determined by the drawing(s), and the description may be considered as a reference.
Article 137
Claim of derivative design patent
The right of a derivative design patent may be claimed independently, and its effect shall be extended to the scope of similarity.
Article 138
Disposal of derivative design patent
A derivative design patent right shall be assigned, entrusted, inherited, licensed or pledged along with its original design patent.
Where the original design patent right becomes extinguished or is revoked finally and bindingly pursuant to Subparagraph 3 or 4, Paragraph 1 of Article 70 applicable mutatis mutandis under Paragraph 1 of Article 142, the two or more derivative design patents that are still in force shall not be separately assigned, entrusted, inherited, licensed, or pledged.
Article 139
Post-grant amendment of design patent
The patentee filing a request for amending the description or drawing(s) of a granted design patent shall only conduct the following s:
1. to correct errors or translation errors; or
2. to clarify ambiguous statement.
Except for correction of translation errors, a post-grant amendment shall not extend beyond the scope of content disclosed in the description or drawing(s) as filed.
For a patent application for design filed by providing the description and drawing(s) in a foreign language pursuant to Paragraph 3 of Article 125, correction of translation errors shall not extend beyond the scope of content disclosed in the original foreign language documents as filed.
A post-grant amendment shall not substantially enlarge or alter the scope of drawing(s) as published.
Article 140
Restriction on abandoning design patent right
A design patentee shall not abandon his/her design patent right without consent from the licensee(s) or pledgee(s).
Article 141
Grounds for invalidation
Any person may request for an invalidation action against a design patent with the Specific Patent Agency under any of the following circumstances:
1. where there is a violation of any of the provisions set forth in Articles 121 to 124, Article 126, Article 127, Paragraphs 1 to 3 of Article 128, Paragraph 3 of Article 131, Paragraph 3 of Article 132, Paragraph 2 of Article 133, Paragraphs 2 to 4 of Article 139, Paragraph 4 of Article 34 applicable mutatis mutandis under Paragraph 1 of Article 142, Paragraph 2 of Article 43 applicable mutatis mutandis under Paragraph 1 of Article 142 and Paragraph 3 of Article 44 applicable mutatis mutandis under Paragraph 1 of Article 142;
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 design patentee is not the owner of the right to apply for a design 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) of an invalidation action against a design patent, the provisions in effect at the time of the said patent being approved shall govern. However, if an invalidation action is filed based on the ground(s) under Paragraph 3 of Article 131, Paragraph 3 of Article 132, Paragraphs 2 and 4 of Article 139, Paragraph 4 of Article 34 applicable mutatis mutandis under Paragraph 1, Article 142, or Paragraph 2 of Article 43 applicable mutatis mutandis under Paragraph 1, Article 142 of this Act, such invalidation action shall be governed by the provisions in effect at the time of filing the said action.
Article 142
Provisions applied mutatis mutandis to design patent
The provisions of Article 28, Article 29, Paragraphs 3 and 4 of Article 34, Article 35, Article 36, Article 42, Paragraphs 1 to 3 of Article 43, Paragraph 3 of Article 44, Article 45, Paragraph 2 of Article 46, Article 47, Article 48, Article 50, Paragraphs 1, 2 and 4 of Article 52, Paragraph 2 of Article 58, Article 59, Articles 62 to 65, Article 68, Article 70, Article 72, Paragraphs 1, 3 and 4 of Article 73, Articles 74 to 78, Paragraph 1 of Article 79, Articles 80 to 82, Articles 84 to 86, Articles 92 to 98, and Articles 100 to 103 shall apply mutatis mutandis to design patent.
In the case of a patent application for design, the time period specified in Paragraph 1 of Article 28 shall be six (6) months.
In the case of a patent application for design, the time period specified in Paragraphs 2 and 4 of Article 29 shall be ten (10) months.
In the case of a patent application for design, the time period specified in Subparagraph 3, Paragraph 1 of Article 59 shall be six (6) months.
Web site:Laws & Regulations Database of The Republic of China (Taiwan)