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Patent Act Article 51-100 (2013.1.1 Effective)
Patent Act Article 101-159 (2013.1.1 Effective)
Patent Act
(as amended in 2011)
1. Promulgated on May 29, 1944 by the Government; effective on January 1, 1949
2. Amended and Promulgated on January 22, 1959 by Presidential Order
3. Amended and Promulgated on May 12, 1960 by Presidential Order
4. Amended and Promulgated on April 16, 1979 by Presidential Order
5. Amended and Promulgated on December 24, 1986 by Presidential Order
6. Amended and Promulgated on January 21, 1994 by Presidential Order
7. Amended and Promulgated on May 7, 1997 by Presidential Order; effective on January 1, 2002
8. Amended and Promulgated on October 24, 2001 by Presidential Order
9. Amended and Promulgated on February 6, 2003 by Presidential Order; effective on July 1, 2004
10. Amended and Promulgated on August 25, 2010 by Presidential Order; effective on September 12, 2010
11. Amended and Promulgated on December 21, 2011 by Presidential Order
(The 2011 Amendment will be effective on January 1, 2013)
Chapter 1 General Provisions
Article 1 Purpose
This Act is enacted for the encouragement, protection and utilization of creations of inventions, utility models and designs in order to promote the development of industry.
Article 2 Categories of patents
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 Competent authority
The "competent authority" as referred to in this Act is the Ministry of Economic Affairs (hereinafter 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 which has been approved by the competent authority, or if the laws of said foreign country do not accept patent applications filed by nationals of the ROC.
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 the provisions of this Act.
Subject to provisions in this Act otherwise provided for 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, utility model creator, designer or his/her assignee or successor.
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 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 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 phrase "an invention, or a utility model or a design made by an employee under the performance of his/her job duties" as set forth in the preceding paragraph shall mean the invention, utility model, or design 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 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 right shall be vested in the inventor, utility model creator or designer in the absence of such covenant in the 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 under Paragraph 1 or the preceding paragraph, the inventor, utility model creator or the 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 performance of his/her job 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 utilization of the employer's resources or experience, the employer may, after paying the employee a reasonable remuneration, exploit the invention, utility model or design concerned in its enterprise.
Upon completion of an invention, utility model or design by an employee, which has no connection to the performance of his/her job duties, the employee shall give his/her employer notice in writing of such event and shall inform his/her employer of the process of the innovation, if necessary.
If the employer fails to raise any objection to the employee within six 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 performance of his/her job 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 his/her legitimate rights and interests in respect of his/her invention, utility model, or design shall become void.
Article 10 Agreement on ownership
Where an agreement has been reached by an employer and its employee regarding a dispute over attribution of rights as set forth in Articles 7 and 8 of this Act, the employer or employee concerned may file an application along with relevant evidentiary documents with the Specific Patent Agency for change of ownership of the right involved. The Specific Patent Agency may, as it deems necessary, notify the parties involved to submit documents relevant to any mediation, arbitration or court judgment rendered in accordance with other laws and regulations.
Article 11 Patent agency
An applicant, holder or other interested person may designate an agent to file patent applications or handle patent-related matters on his/her behalf.
An applicant, holder or other interested person who has no domicile or business establishment in the territory of the ROC shall designate an agent to file patent applications or 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 prescribed by separate laws.
Article 12 Joint application
Where a right to apply for a patent is jointly owned by two or more persons, the patent application related thereto shall be filed by all the joint applicants.
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 a divisional application or a converted application, or taking other actions for which this Act requires execution by all the joint applicants. However, if a representative is designated by a mutual covenant of all the joint applicants, such covenant shall prevail.
In the case of an event requiring execution of all the joint applicants as set forth in the preceding two paragraphs, one of the joint applicants shall be appointed as the recipient of service of documents. In the absence of such a representative, the Specific Patent Agency shall name the first-listed joint applicant as the recipient of service of documents and shall advise other joint applicant(s) of such service matters.
Article 13 Co-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 applicants.
Where the right to apply for the patent is jointly owned by two or more persons, none of the joint applicants shall assign his/her own share therein to a third party without the consent of other joint applicant(s).
Where one of the owners of the right to apply for the 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 recordation of change in applicant.
The request referred to in the preceding paragraph, whether for assignment or inheritance, shall be accompanied by evidentiary documents.
Article 15 Duty of confidentiality of staff members and patent examiners
While serving with the Specific Patent Agency, a staff member or a patent examiner 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 responsibility.
The qualification of patent examiners shall be prescribed separately by laws.
Article 16 Avoiding conflict of interests by patent examiners
Under any of the following circumstances, a patent examiner shall exclude himself/herself from performing the duties concerned:
1. where, for a concerned patent case, the patent examiner or his/her spouse is the patent applicant, patentee, invalidation petitioner, patent agent, or 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 petitioner 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 petitioner are common obligee(s), obligor(s), or debt-paying obligor(s);
4. where the patent examiner is or was the legal representative, the family head or a household member of the patent applicant, patentee or invalidation petitioner;
5. where the patent examiner is or was a litigation agent of the patent applicant, patentee or invalidation petitioner, or is or was the assisting party thereof; or
6. where, for a concerned patent case, the examiner is or was a witness, an expert witness, an opposition petitioner or an invalidation petitioner.
Where an examiner should have but did not exclude himself/herself from performing his/her functions, 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 proceeding in connection with patent matters has failed to comply within a statutory or specified time limit, the application filed or the proceeding initiated by him/her shall be dismissed. However, if the delay in not acting within a specified time limit has been corrected before the dismissal is rendered by the Specific Patent Agency, such application or proceeding shall still be accepted.
If the delay is caused by natural calamity or other cause(s) not attributable to the applicant, the applicant may, within thirty days after cessation of such cause, 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 delay has exceeded one year from the expiration of a statutory time limit.
While applying for reinstatement, the applicant shall concurrently complete the application that should have been fulfilled by him/her within the concerned time limit.
The preceding two paragraphs shall not apply to a delay beyond the time limits as set forth in each of 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 cannot be served, such decision or document shall be published in the Patent Gazette and shall be deemed having been duly served thirty days after the date of publication.
Article 19 E-filing
Application for patent and other relevant proceedings may be effected by means of electronic communications, of which the implementation 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.
Chapter II Invention Patent
Section 1: Patentability
Article 21 Definition of invention
"Invention" means the creation of technical ideas, utilizing the laws of nature.
Article 22 Substantial conditions
An invention which is industrially applicable may be granted a patent upon application in accordance with this Act, except for the following:
1. the invention was disclosed in a publication prior to the filing of the patent application;
2. the invention was publicly exploited prior to the filing of the patent application; or
3. the invention was publicly known prior to the filing of the patent application.
Where an invention can be easily made by a person ordinarily skilled in the art based on prior art, a patent shall not be granted for such an invention notwithstanding the preceding paragraph.
Any of the following events shall not be deemed as one prescribed in Paragraph 1 or the preceding paragraph, which may preclude the grant of an invention patent, provided that the concerned patent application is filed within six months from the date of the event's occurrence:
1. the invention concerned was publicly disclosed as a result of conducting a test;
2. the invention was disclosed in a publication;
3. the invention was displayed at an exhibition held or recognized by the Government; or
4. the invention was disclosed without the consent of the applicant.
An applicant claiming exemption as set forth in Item 1 through Item 3 of the preceding paragraph shall state the fact and the relevant date in the patent application at the time of filing and submit evidentiary documents within the time limit specified by the Specific Patent Agency.
Article 23 Deemed as lack of novelty
A patent shall not be granted invention where such invention claimed in a patent application is identical with an invention or utility model disclosed in the description, claim(s) or drawing(s) of an earlier-filed invention or utility model patent application which is laid open or published after the filing of the later-filed patent application; however, this shall not apply where the applicant of the later-filed patent application is the same as the applicant of the earlier-filed invention or utility model patent application.
Article 24 Statutory exclusion
An invention patent shall not be granted in respect of any of the following:
1. animals, plants, and essential biological processes for the production of animals or plants, except processes for producing microorganisms;
2. diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
3. inventions contrary to public order or morality.
Section 2: Application
Article 25 Filing date
An application for an invention patent shall be filed with the Specific Patent Agency by the person entitled to applying for patent by submitting a request, a description, claim(s), an abstract, and the necessary drawing(s).
The filing date of an invention patent application shall be the date on which the request, description, claim(s), and the necessary drawing(s) are submitted in full.
Where an applicant does not submit a description, claim(s) and the necessary drawing(s) in Chinese at the time of filing, but in a foreign language, and where the Chinese translation for the said documents is submitted within the time limit specified by the Specific Patent Agency, the filing date shall be the date on which the foreign language version were originally submitted.
Where the Chinese translation is not submitted within the specified time limit as stated in the preceding paragraph, the patent application shall be dismissed; however, if the Chinese translation is filed prior to the dismissal decision is received, the date on which the Chinese translation is filed shall be regarded as the filing date, and the foreign language version shall be deemed not having been submitted.
Article 26 Disclosure
A description shall disclose the invention in a manner clear and sufficient for it to be understood and carried out by a person ordinarily skilled in the art.
Claim(s) shall define the claimed invention, and more than one claim can be included therein. Each claim shall be disclosed in a clear and concise manner and be supported by the description.
An abstract shall clearly contain a summary of the disclosed invention; it shall not be taken into account for the purpose of determining the sufficiency of the disclosure and the patentability of the claimed invention.
Manner of disclosure for description, claim(s), abstract, and drawing(s) shall be prescribed in the Enforcement Rules of the Patent Act.
Article 27 Deposit of biological material
When filing an invention patent application involving a biological material or utilization of a biological material, the applicant shall, no later than the filing date, make a deposit of the biological material with a domestic depository designated by the Specific Patent Agency. No deposit is required if the biological material involved can be easily obtained by a person ordinarily skilled in the art.
An applicant shall, within four months after the filing date of his/her patent application, submit to the Specific Patent Agency a certificate of deposit, indicating the depository, date of deposit and depository number. If such document is not submitted within the time limit, the deposit shall be deemed not having been made.
Where priority is claimed under Article 28, the time limit set forth in the preceding paragraph shall be sixteen months after the priority date.
In the event that, prior to filing the invention patent application, the biological material concerned had been deposited with a foreign depository recognized by the Specific Patent Agency, and where the certificates of deposits issued by the designated domestic depository and the foreign depository have been submitted within the time limit prescribed in either the second paragraph or the preceding paragraph, the applicant is exempted from the requirement of making deposit no later than the filing date, as set forth in the first paragraph .
If an applicant has deposited the biological material concerned with a depository designated by a foreign country with which the ROC recognizes the effects of deposits based on reciprocity, and if the applicant has submitted the certificate(s) of deposit issued by said foreign depository within the time limit prescribed in Paragraph 2 or Paragraph 3, the applicant is exempted from the requirement of making a deposit in the ROC.
The competent authority shall enact regulations on the requirements for accession, types, forms, and quantities of deposits of biological materials, deposit fees, and other matters in connection with making deposits set forth in Paragraph 1.
Article 28 Priority claim under WTO membership, etc.
Where an applicant has duly filed his/her first patent application in a foreign country, which reciprocally allows ROC nationals to claim patent priority, or with any member of the World Trade Organization (WTO), the applicant may claim priority in respect of his/her ROC patent application if the ROC patent application for the same invention is filed within twelve months from the filing date of the said first patent application.
Where an applicant claims two or more priorities in respect of a patent application, the period referred to in the preceding paragraph shall be on the basis of earliest priority date.
If a foreign applicant is a citizen of a non-member of the WTO and his/her home country does not mutually recognize priority with the ROC, but the applicant has domicile or business establishment in any member of the WTO or in the territory of a reciprocal country, the applicant shall also be entitled to claim priority in accordance with the provisions set forth in Paragraph 1.
For a patent application filed with priority, examination on its patentability shall be based on the priority date.
Article 29 Claim of priority
When claiming priority in accordance with the preceding Article, an applicant shall simultaneously make a declaration with respect to the following when filing his/her patent application:
1. the filing date of the first patent application;
2. the country or member of WTO in or for which the first patent application was filed;
3. the application number of the first patent application.
Within sixteen months from the earliest priority date, the applicant shall submit a certified copy of the first patent application issued by the foreign patent authority under the preceding paragraph.
In case of a violation of Subparagraph 1 or Subparagraph 2 of Paragraph 1 or Paragraph 2, the priority claim shall be deemed not having been made.
Where, unintentionally, no priority claim is made at the time of filing his/her patent application or priority claim is deemed not having been made as prescribed in the preceding paragraph, the applicant may, within sixteen months after the earliest priority date, apply for reinstatement of priority claim, pay the required fee and undertake actions set forth in Paragraphs 1 and 2.
Article 30 Priority claim based on earlier application
Where an applicant, based on his/her earlier invention or utility model patent application in the ROC, files a subsequent patent application, he/she may make a priority claim with respect to the invention or utility model disclosed in the description, claim(s) or drawing(s) submitted for the earlier patent application. This provision shall not apply under any of the following circumstances:
1. where a period of twelve months has elapsed from the filing date of the earlier patent application;
2. where priority has been claimed in accordance with the provisions of Article 28 or this Article in respect of the invention or utility model disclosed in the earlier patent application;
3. where the earlier patent application is a divisional patent application to Paragraph 1 of Article 34 or Paragraph 1 of Article 107, or a patent application converted pursuant to Paragraph 1 of Article 108;
4. where the earlier patent application is for an invention patent application that has been published or has been irrevocably rejected;
5. where the earlier patent application is for a utility model patent application that has been published or has been irrevocably rejected;
6. where the earlier patent application has been withdrawn or dismissed.
The earlier patent application referred to in the preceding paragraph shall be deemed having been withdrawn upon an expiry of fifteen months from its filing date.
Priority claimed shall not be withdrawn upon an expiry of fifteen months from the filing date of the earlier patent application.
For a subsequent patent application filed with priority claim in accordance with Paragraph 1 of this Article, which has been withdrawn within fifteen months from the filing date of the earlier application, the priority claim thus made shall be deemed having been withdrawn at the same time.
Where an applicant claims two or more priorities for a patent application, the calculation of priority period shall be on the basis of the earliest priority date.
For a patent application filed with priority, examination on its patentability shall be based on the priority date.
Where a priority claim is made in accordance with Paragraph 1 under this Article, the filing date and the application number of the earlier patent application shall be declared at the time of filing. If the above-mentioned declaration is not made, priority claim shall be deemed not having been made.
Article 31 Principle of first-to-file
Where two or more patent applications are filed for the same invention, only the earliest 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.
If 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 time limit; failure to make a selection within the time limit shall result in rejection of all such patent applications.
While the applicants concerned are in the process of reaching an agreement, the Specific Patent Agency shall require these applicants to report the results of the negotiation within an appropriate time limit. If the said report is not submitted within the specified time limit, it shall be deemed that an agreement is not reached.
Where an invention patent application and a utility model patent application are filed separately in respect of the same creation, the provisions set forth in the preceding three paragraphs shall apply mutatis mutandis, except for the circumstance stipulated in Article 32.
Article 32 One creation applied for invention patent and utility model patent
Where an applicant files an invention patent application and a utility model patent application for the same creation on the same date, if the utility model patent application has been granted before a decision of admission is issued on the invention patent application, the Specific Patent Agency shall notify the applicant to select one patent application within a specified time limit. The invention patent application shall not be granted if the applicant fails to make the selection within the specified time limit.
Where the applicant select the invention patent application according to the provision set forth in the preceding paragraph, the utility model patent right shall be deemed non-existent ab initio.
The invention patent application shall not be granted if the utility model patent right has extinguished or has been invalidated before a decision is issued on the invention patent application.
Article 33 Unity
An application for an invention patent shall relate to one invention.
Two or more inventions so linked as to form a single general inventive concept may be filed as one application.
Article 34 Division of application
For a patent application which substantially contains two or more inventions, the said patent application may, upon notice by the Specific Patent Agency or upon request by the applicant, be divided into two or more divisional applications.
A divisional application shall be filed within any of the following time limit:
1. before a reexamination decision on the original patent application is rendered;
2. within thirty days from the date on which an approval decision for the original patent application has been served. However, it shall not be filed if a reexamination decision has been rendered.
The filing date of the divisional patent application shall be deemed to have the filing date of the original application. Where the priority claim has been made, the applicant can claim priority for the divisional patent application.
The divisional patent application shall not extend beyond the scope of content of the description, claim(s), or drawing(s) of the original patent application as filed.
For the divisional patent application filed in accordance with Subparagraph 1of Paragraph 2, the examination thereof shall be continued from the examination procedure of the original patent application.
For the divisional patent application filed in accordance with Subparagraph 2 of Paragraph 2, the examination thereof shall be continued from the examination procedure that was left before the original patent application was approved; the original patent application shall be published with the claim(s) and drawing(s) as approved.
Article 35 Invalidation request filed by genuine holder of right to apply for a patent
Where an invalidation request is filed against a granted patent by the person entitled to apply for a patent or by the joint owner(s) of the right to apply for a patent within two years from the published date of the patent concerned in accordance with Item 3, Paragraph 1 of Article 71, and where the said person or joint owner(s) newly file(s) a patent application for the same invention within two months from the day on which the invalidation decision revoking the patent has become final and binding, the filing date of the newly filed patent application shall be deemed to have the filing date of the invalidated patent.
A patent application newly filed in accordance with the preceding paragraph shall not be published again.
Section 3: Examination and Reexamination
Article 36 Assignment of examiner for examination
The Specific Patent Agency shall assign an examiner to conduct the substantive examination of an invention patent application.
Article 37 Early publication of patent application
After receiving the filing documents for an invention patent application, if, after examination, the Specific Patent Agency finds no violation of the formality requirements and no event that may lead the patent application being not laid open, the Specific Patent Agency shall have such patent application laid open after eighteen months from the filing date of such patent application.
The Specific Patent Agency may advance the laying-open of a patent application upon the request of the applicant.
An invention patent application shall not be laid open under any of the following circumstances:
1. where it is withdrawn within fifteen months from its filing date;
2. where it involves national defense secrets or any other secrets pertaining to national security;
3. where it is contrary to public order or morality.
Where priority is claimed, the calculation of the time limit set forth in Paragraph 1 and the preceding paragraph shall be on the basis of the priority date; where two or more priorities are claimed, the time limit calculation shall be on the basis of the earliest priority date.
Article 38 Request for substantive examination
A request to the Specific Patent Agency for substantive examination of an invention patent application shall be made by any person within three years from the filing date of the patent application.
In the case of an invention patent application which was divided under Paragraph 1 of Article 34 or was converted under Paragraph 1 of Article 108, if the time limit set forth in the preceding paragraph has lapsed, a request for substantive examination can be filed no later than thirty days following the application for division or conversion.
A request for substantive examination under the preceding two paragraphs shall not be withdrawn.
Where a request for substantive examination is not filed within the time limit prescribed in Paragraph 1 or Paragraph 2, the invention patent application shall be deemed to have been withdrawn.
Article 39 Request Procedure for substantive examination
A request for substantive examination under the preceding Article shall be submitted.
The Specific Patent Agency shall publish the fact regarding a request for substantive examination in the Patent Gazette.
Where the substantive examination is requested by a person other than the applicant, the Specific Patent Agency shall notify the applicant of the invention patent application of such fact.
Article 40 Prioritized examination of invention patent application
Where, after the laying-open of an invention patent application, a person other than the applicant has exploited the invention commercially, the Specific Patent Agency may, upon request, conduct prioritized examination.
Relevant evidentiary documents shall be submitted when filing a request under the preceding paragraph.
Article 41 Effect of the laying open of application
After the laying-open of an invention patent application, where the applicant has given a written notice to a person indicating the content of the invention claimed in the patent application, the applicant may, after the publication of the said patent application, claim appropriate compensation against the said person if he/she continues to exploit the invention commercially after receiving the notice and prior to the publication of the said patent application.
A claim referred to in the preceding paragraph can also be made where a person who knows that an invention patent application has been laid open but continues to exploit the invention commercially prior to publication of the patent application.
The right to claim compensation as provided in the preceding two paragraphs does not affect the exercise of other rights.
The right to claim compensation set forth in Paragraph 2 shall be ceased if it is not exercised within two years from the date of publication of the said invention patent.
Article 42 Interview and inspection in examination of application
When examining an invention patent application, the Specific Patent Agency may, upon request or on its own initiative, notify the applicant to conduct any of the following actions within a specified time limit:
1. to appear before the Specific Patent Agency for an interview;
2. to perform necessary experiment(s) or submit model(s) or sample(s).
Where experiment(s) or model(s) or sample(s) is(are) performed or submitted as stated in Subparagraph 2 of the preceding paragraph, the Specific Patent Agency may, when necessary, visit the site or a designated place for inspection.
Article 43 Amendment during examination; final notice
Unless otherwise provided for in this Act, when examining an invention patent application, the Specific Patent Agency may, upon request or on its own initiative, notify the applicant to amend the description, claim(s), or drawings within a specified time limit.
Except for correction of translation errors, any amendment shall not extend beyond the scope of content of the description, claim(s), or drawing(s) as filed.
Where the Specific Patent Agency issues a notice in accordance with Paragraph 2 of
Article 46, a patent applicant can only make amendments within the time limit specified in the notice.
After the Specific Patent Agency has issued a notice under the preceding paragraph, as it deems necessary, they may issue a final notice. After a final notice is issued, as to amendment of claim(s), the patent applicant shall only conduct the amendment as follows within the time limit specified in the said notice:
1. to delete claim(s);
2. to restrict the scope of claim(s);
3. to correct the errors;
4. to clarify the ambiguous statement.
In case of a violation of the provisions in the preceding two paragraphs, the Specific Patent Agency shall state the reasons and issue a decision accordingly.
The Specific Patent Agency may issue a final notice if the original patent application or its divisional application meets any of the following conditions:
1. where the content of the notice issued for the original patent application is same as that of the notice issued for the divisional patent application;
2. where the content of the notice issued for the divisional patent application is same as that of the notice issued for the original patent application;
3. where the content of the notice issued for a divisional application is same as that of a notice issued for other divisional application(s).
Article 44 Foreign language documents
Where a patent applicant submits a description, claim(s), and drawings prepared in a foreign language under Paragraph 3 of Article 25, such foreign language documents shall not be amended.
The Chinese translation submitted under Paragraph 3 of Article 25 shall not extend beyond the scope of content of the original foreign language documents as filed.
Any correction of translation errors of the Chinese version stated in the preceding paragraph shall not extend beyond the scope of content of the original foreign language documents as filed.
Article 45 Decision of examination
Upon completion of examination of an invention patent application, a written decision shall be rendered and served on the applicant.
When a patent application is determined to be unpatentable, the reason(s) shall be given in the written decision of examination.
A written decision of examination shall bear the name of the patent examiner. This requirement shall also apply to written decisions for reexamination, amendment after grant, invalidation, patent term extension and invalidation against patent term extension.
Article 46 Grounds for rejection decision
When an invention patent application is in violation of the provisions set forth in Articles 21 through 24, Article 26, Article 31, Paragraphs 1 and 3 of Article 32; Article 33, Paragraph 4 of Article 34, Paragraph 2 of Article 43, Paragraphs 2 and 3 of Article 44 or Paragraph 3 of Article 108, a rejection decision shall be rendered.
The Specific Patent Agency shall notify the applicant and ask him /her to file a response within a time limit before it renders a decision in accordance with the preceding paragraph. If the applicant fails to make a response before the time limit, a decision of rejection shall be rendered accordingly.
Article 47 Publication of patented invention and application for viewing
A claimed invention shall be patented if there is no reason for negating its patentability, and the claim(s) and the drawing(s) of the patent application shall be published.
Any person may apply for reviewing, transcribing, photographing, or photocopying the written decision of examination, description, claim(s), abstract, drawing(s), and the file wrapper in connection with a patent application which has been published, except for the information which should be kept confidential by the Specific Patent Agency in accordance with laws.
Article 48 Reexamination
Where an applicant of an invention patent application is dissatisfied with a rejection decision rendered for his/her patent application, he/she may apply for a reexamination with reason(s) within two months after the date on which the rejection decision is served. If the patent application is not accepted or dismissed for formality defects or on the ground of ineligibility of the applicant, the applicant may directly file administrative remedy actions in accordance with acts.
Article 49 Amendment during reexamination
Where a rejection decision is preceded by a notice of rejection as set forth in Paragraph 2 of Article 46, the applicant shall still be allowed to amend his/her description, claims, or drawing(s) during the reexamination stage.
Where a final notice has been issued before the rejection decision is rendered for a patent application, any amendment made during the reexamination stage shall still be subject to limitations set forth in each item of Paragraph 4 of Article 43. The above shall not apply to reexamination, if the Specific Patent Agency finds that the final notice issued in the original examination procedure was improper.
The Specific Patent Agency may issue a final notice under any of the following circumstances:
1. where the reason(s) for reexamination still involves unpatentable event(s);
2. where the amendment(s) made during the reexamination stage still lead to unpatentable event(s);
3. where an amendment made in accordance with the preceding paragraph violates Paragraph 4 of Article 43.
Article 50 Assignment of examiner for reexamination
At the time of reexamination, the Specific Patent Agency shall assign an examiner, who did not participate in the original examination stage of the concerned patent application, to conduct the reexamination and render a written decision served to the applicant.
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