經通國際智慧產權事務所

Patent Law amendments have been promulgated by the President of the Republic of China on Feb. 6, 2003.  In accordance with Article 138, except for Article 11 which shall come into effect at the same time, the date the rest amended Articles shall come into effect will be decided by Executive Yuan.  Since the extent of the patent amendment is tremendous and involve great resolution for the original system, IPO is currently deciding the necessary steps to accomplish the amendments and expect the amended Patent Law to be come into force a year later.

Totaled more than 150 articles will be changed, among the changes, decriminalization for Utility Model infringement, examination system change to become formality examination for Utility Model applications, and abolishment of the opposition system for patents are deemed to be the most tremendous changes which are explained as follows :
 

Articles 83, 125, 126, 128 and 131 have been deleted in the new law and affected on March 31, 2003 which also represent the era for patent decriminalization.
 

The current substantive examination takes to much time to obtain the patent which usually will effect the time table to launch the market, especially for short-life products.  In order to meet the need for the industries, the substantive examination system will be changed to become formality examination for Utility Model applications, the new examination system shall apply to the pending Utility Model applications by the time the amended Patent Law come into effect.

“The following items shall not be granted new utility model patents via formality examination :

1.A new Utility Model which does not belong to the form, construction or fitting of an object

2.In violation of the preceding Paragraph

3.In violation of Articles 108 applied mutates mutandis to the provisions of Paragraph one and four of Articles 26 in respect to the form of the disclosure.

4.In violation of Article 108 applied mutates mutandis to Article 32.

5.Necessary information is not disclosed by specification or drawings or the disclosure is unclear. Before rendering a decision under the preceding Paragraph, the applicant shall be notified to express his opinion or to supplement, amend the specification or drawings.

The Opposition System has been abolished in the new law (current Patent Law Articles 41, 102 and 115) and replaced by Articles 67, 107, 128 in which cancellation would be the legal procedure to invalidate a patent which has been granted.  The reason for abolishing the opposition system is that the time required for an opposition procedure is long and usually will result in business loss for applicant for missing the business opportunity.  Patent is granted and a certificate issued right after passing examination.   Cancellation procedure shall be brought to after the patent is granted by any third party in case any invalidation procedure is desired.