AMENDED AND PROMULGATDE ON 6 FEBRUARY 2003 BY
PRESIDENTIAL ORDER NO. HUA-TZUNG-1-YI-TZU 0920017760 ENFORCE ON 1
JULY 2004 BY THE EXECUTIVE YUAN ORDER NO. YUAN-TAI-JING-TZU
0930026128
Chapter 1
General Provisions
Article
1
This Act is enacted for encouraging, protecting and utilizing
inventions and creations so as to promote the development of
industries.
Article 2
The term "patent" referred to in this Act is classified into the
following three categories:
1. Invention patents;
2. Utility model patents; and
3. Design patents.
Article 3
The government authority in charge of patent affairs
(hereinafter referred to as the "Competent Authority") under this
Act shall be the Ministry of Economic Affairs (the "MOEA").
The patent affairs shall be handled by a sole authority (hereinafter
referred to as the "Patent Authority") to be appointed by the MOEA.
Article 4
A patent application filed by a foreign applicant may be
rejected if the home country of such foreign applicant is not a
signatory of an international treaty for protection of patent right
to which the Republic of China (hereinafter referred to as the
"ROC") is also a signatory, or if the home country has not concluded
with the ROC a treaty or an agreement for reciprocal protection of
patent rights, or if no patent protection agreement has ever been
concluded by and between the organizations or institutions of the
ROC and said foreign country, as approved by the Competent
Authority, or if the acts of said foreign country do not accept
patent applications filed by nationals of the ROC.
Article 5
The term "right to apply for patent" shall mean the right to
file a patent application in accordance with the provisions of this
act.
Subject to the provisions otherwise provided for in this Act or the
covenants otherwise set out in any agreement, the term "the owner of
the right to apply for patent" shall mean any inventor, creator or
his/her assignee or successor.
Article 6
The right to apply for patent and the patent right are both
assignable and inheritable.
The right to apply for patent shall not be taken as the subject for
creation of a pledge.
In the case of taking a patent right as the subject of a pledge, the
pledgee shall not be allowed to put the patent under pledge into
practice, unless otherwise provided for as a covenant in an
agreement.
Article 7
Where an invention or a utility model or a design is made by an
employee in the performance of his/her job duties, the right to
apply for patent and the patent right thereof shall be vested in
his/her employer, and the employer shall pay the employee a
reasonable remuneration, provided that if there is any covenant
otherwise provided for in an agreement, such covenant shall prevail.
The clause "an invention, or a utility model or a design which is
made in the performance of his/her job duties" as set forth in the
preceding Paragraph shall mean the invention, utility model or
design which is completed by an employee in performing his/her job
duties during the period of his/her employment.
Where a fund-provider engages another party to conduct research and
development, the ownership of the right to apply for patent and the
patent right in connection with the outcome of such research and
development shall be vested in the party as named by a covenant in
the agreement between the two parties concerned, or shall be vested
in the inventor or creator in the absence of such a covenant in the
agreement provided, however, that the fund-provider shall be
entitled to put such invention, utility model or design into
practice.
In case the ownership of the right to apply for patent and the
patent right is vested in the employer or the fund-provider under
Paragraph One or the preceding Paragraph under this Article, the
inventor or the creator concerned shall be entitled to the right of
having his/her name shown as the inventor or the creator.
Article 8
Where an invention, a utility model or a design made by an
employee is irrelevant to his/her job duties, the right to apply for
patent and the patent right concerned shall be vested in the
employee provided, however, that if such invention, utility model or
design is made through utilization of the employer's resources or
experience, the employer may, after having paid the employee a
reasonable remuneration, put the same invention or utility model or
design into practice in the enterprise concerned.
Upon completion of an invention, a utility model or a design
irrelevant to his/her job duties, the employee shall give his/her
employer a notice in writing of such event and shall inform his/her
employer of the process of the creation when necessary.
If the employer fails to raise any objection to the employee within
six (6) months after his/her receipt of the written notice given by
the employee under the preceding Paragraph, he/she shall not claim
that such invention, utility model or design is made by the said
employee in the performance of his/her job duties.
Article 9
An agreement concluded between an employer and an employee, by
which the employee is precluded from enjoying his/her legitimate
rights and interests in respect of his/her invention, utility model
or design, shall be void.
Article 10
Where an agreement has been reached by an employer and one of
its employees in respect of the dispute concerning the principle for
determining the attribution of patent-related rights as set forth in
Articles 7 and 8 of the Act, the employer or employee involved shall
file an application with the Patent Authority for change on the
ownership of the right involved, accompanied by the relevant
evidential documents. The Patent Authority may, as it deems
necessary, notify the parties involved to submit thereto documents
relevant to any mediation, arbitration or court judgment rendered in
accordance with other acts and regulations.
Article 11
A patent applicant may designate an agent to act on his/her
behalf in filing patent applications and handling patent-related
matters.
A patent applicant who has no residence or business office in the
territory of the ROC shall designate an agent to act on his/her
behalf to file patent applications and handle patent-related
matters.
An agent shall be limited to a certified patent attorney, unless
otherwise provided for in the acts and regulations.
Qualification and administration of certified patent attorneys shall
be prescribed in a separate act. Before enactment of that separate
act, the rules for acquisition, canceling and revocation of
qualification certificate and the administration of certified patent
attorneys should be prescribed by the competent authority.
Article 12
Where a patent application right is jointly owned by two or more
person, the patent application(s) related thereto shall be filed
jointly by all joint-owners.
Where two or more persons proceed to any patent-related procedure(s)
other than filing a patent application, each of them may complete
such procedure(s) independently, except for filing an application
for withdrawing or abandoning a patent application, or for dividing
a patent right or converting a patent application, or for filing any
application otherwise required in this Act which shall be executed
and filed by all joint-owners provided, however, that if a
representative is designated by a mutual covenant of all
joint-owners, such covenant shall prevail.
In the case of an application requiring execution of all
joint-owners as set forth in the preceding two Paragraphs, one of
the joint-owners shall be appointed as the recipient of service of
the documents. In the absence of such a representative, the patent
authority shall name the first applicant indicated in the list of
joint-applicants as the recipient of service and shall advise all
other joint-owners of such matters of service.
Article 13
Where the right to apply for patent is jointly owned by two or
more persons, no joint-owner may, without the consent of the other
joint-owners, assign his/her share therein to any third party.
Article 14
In the case of an inheritance or assignment of the right to
apply for patent, the successor or the assignee shall have no locus
standi against any third party unless the patent application was
filed in the name of the successor or the assignee when filing for
patent, or an application was filed thereafter with the Patent
Authority for the change of the applicant's name.
Any such application referred to in the preceding Paragraph, whether
filed for an assignment or an inheritance, shall be accompanied by
evidential documents.
Article 15
No staff and patent examiner, while serving in the Patent
Authority, may apply for a patent or receive any rights and
interests in connection with a patent directly or indirectly, except
in the capacity of a successor thereto.
Article 16
Staff and patent examiners of the Patent Authority shall have
the obligation to keep the confidentiality of the patent-related
matters of any invention, utility model or design, or the trade
secret of a patent application which has become known to or been
held by them in the course of performing their duties.
Article 17
When a person filing a patent application or going through any
other procedures in connection with patent matters has delayed
beyond any statutory or given time limit, or has defaulted in
payment of any fees prior to the deadline fixed therefor, the
application filed or the other procedures instituted by him/her
shall be dismissed, unless his/her delay to act within the given
time limit or his/her failure in payment by the deadline has been
corrected before an administrative decision is rendered by the
Patent Authority.
If the delay is caused by natural calamities or other causes not
attributable to the applicant, the applicant may within thirty (30)
days after termination of such cause(s), file a written application
with the Patent Authority for reinstating the interrupted case to
its original condition by giving the reasons therefor in said
application, except in the case where one (1) year has elapsed after
expiration of the statutory time limit.
While applying for reinstatement of the interrupted case, the
applicant shall concurrently fulfill his/her obligations that should
have been fulfilled by him/her within the statutory time limit.
Article 18
Where service of a written examination decision or any other
documents can not be made, such written examination decision or
document shall be published in the Patent Gazette and shall be
deemed duly served after thirty (30) days from the date of
publication thereof in the Patent Gazette.
Article 19
Procedures for patent application and other relevant operations
may be effected by means of electronic operations; the commencement
date of and the regulations governing such practices shall be
prescribed by the competent authority.
Article 20
The duration of any relevant period as specified in this Act
shall not include the beginning or the commencement date thereof.
The duration of the patent rights as specified respectively in
Paragraph Three, Article 51; Paragraph three, Article 101; and
Paragraph Three, Article 113 of this Act shall commence from the
date of application of the patent concerned.