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1 專利法中英文對照 民國 99 年 08 月 25 日修正 Patent Act ( Amended ) 本表中英條文資料來源 : 法務部全國法規資料庫 聲明 : 本中英對照表係黃裕凱老師編輯, 供輔大法律學生法學英文初階學習參考之用, 不得作為其他用途注意一 : 本表內容如與各法規主管機關之公布文字有所不同, 以各主管機關公布為準注意二 : 英譯文部分, 全國法規資料庫有若干缺漏或錯誤之處, 本表不擔保其正確性本表編輯基準日 : 目次 第一章總則第二章發明專利第一節專利要件第二節申請第三節審查及再審查第四節專利權第五節實施第六節納費第七節損害賠償及訴訟第三章新型專利第四章新式樣專利第五章附則 Chapter I General Provisions Chapter II Invention Patent Section 1: Patentability of inventions Section 2: Application Section 3: Examination and Re-examination Section 4: Patent Rights Section 5: Practicing Section 6: Government Fees Section 7: Indemnity for Damages and Litigation Chapter III Utility Model Patents Chapter IV Design Patents Chapter V Supplemental Provisions 專利法 _1

2 第一章總則 第 1 條為鼓勵 保護 利用發明與創作, 以促進產業發展, 特制定本法 第 2 條本法所稱專利, 分為下列三種 : 一 發明專利 二 新型專利 三 新式樣專利 第 3 條本法主管機關為經濟部 專利業務, 由經濟部指定專責機關辦理 第 4 條外國人所屬之國家與中華民國如未共同參加保護專利之國際條約或無相互保護專利之條約 協定或由團體 機構互訂經主管機關核准保護專利之協議, 或對中華民國國民申請專利, 不予受理者, 其專利申請, 得不予受理 第 5 條專利申請權, 指得依本法申請專利之權利 專利申請權人, 除本法另有規定或契約另有約定外, 指發明人 創作人或其受讓人或繼承人 第 6 條專利申請權及專利權, 均得讓與或繼承 專利申請權, 不得為質權之標的 Chapter I 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. 專利法 _2

3 以專利權為標的設定質權者, 除契約另有約定外, 質權人不得實施該專利權 第 7 條受雇人於職務上所完成之發明 新型或新式樣, 其專利申請權及專利權屬於雇用人, 雇用人應支付受雇人適當之報酬 但契約另有約定者, 從其約定 前項所稱職務上之發明 新型或新式樣, 指受雇人於僱傭關係中之工作所完成之發明 新型或新式樣 一方出資聘請他人從事研究開發者, 其專利申請權及專利權之歸屬依雙方契約約定 ; 契約未約定者, 屬於發明人或創作人 但出資人得實施其發明 新型或新式樣 依第一項 前項之規定, 專利申請權及專利權歸屬於雇用人或出資人者, 發明人或創作人享有姓名表示權 第 8 條受雇人於非職務上所完成之發明 新型或新式樣, 其專利申請權及專利權屬於受雇人 但其發明 新型或新式樣係利用雇用人資源或經驗者, 雇用人得於支付合理報酬後, 於該事業實施其發明 新型或新式樣 受雇人完成非職務上之發明 新型或新式樣, 應即以書面通知雇用人, 如有必要並應告知創作之過程 雇用人於前項書面通知到達後六個月內, 未向受雇人為反對之表示者, 不得主張該發明 新型或新式樣為職務上發明 新型或新式樣 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. 專利法 _3

4 第 9 條前條雇用人與受雇人間所訂契約, 使受雇人不得享受其發明 新型或新式樣之權益者, 無效 第 10 條雇用人或受雇人對第七條及第八條所定權利之歸屬有爭執而達成協議者, 得附具證明文件, 向專利專責機關申請變更權利人名義 專利專責機關認有必要時, 得通知當事人附具依其他法令取得之調解 仲裁或判決文件 第 11 條申請人申請專利及辦理有關專利事項, 得委任代理人辦理之 在中華民國境內, 無住所或營業所者, 申請專利及辦理專利有關事項, 應委任代理人辦理之 代理人, 除法令另有規定外, 以專利師為限 專利師之資格及管理, 另以法律定之 ; 法律未制定前, 代理人資格之取得 撤銷 廢止及其管理規則, 由主管機關定之 第 12 條專利申請權為共有者, 應由全體共有人提出申請 二人以上共同為專利申請以外之專利相關程序時, 除撤回或拋棄申請案 申請分割 改請或本法另有規定者, 應共同連署外, 其餘程序各人皆可單獨為之 但約定有代表者, 從其約定 前二項應共同連署之情形, 應指定其中一人為應受送達人 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 專利法 _4

5 未指定應受送達人者, 專利專責機關應以第一順序申請人為應受送達人, 並應將送達事項通知其他人 第 13 條專利申請權為共有時, 各共有人未得其他共有人之同意, 不得以其應有部分讓與他人 第 14 條繼受專利申請權者, 如在申請時非以繼受人名義申請專利, 或未在申請後向專利專責機關申請變更名義者, 不得以之對抗第三人 為前項之變更申請者, 不論受讓或繼承, 均應附具證明文件 第 15 條專利專責機關職員及專利審查人員於任職期內, 除繼承外, 不得申請專利及直接 間接受有關專利之任何權益 第 16 條專利專責機關職員及專利審查人員對職務上知悉或持有關於專利之發明 新型或新式樣, 或申請人事業上之秘密, 有保密之義務 第 17 條凡申請人為有關專利之申請及其他程序, 延誤法定或指定之期間或不依限納費者, 應不受理 但延誤指定期間或不依限納費在處分前補正者, 仍應受理 申請人因天災或不可歸責於己之事由延誤法定期間者, 於其原因消滅後三十日內得以書面敘明理由向專利專責機關申請回復原狀 但延誤法定期間已 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, 專利法 _5

6 逾一年者, 不在此限 申請回復原狀, 應同時補行期間內應為之行為 第 18 條審定書或其他文件無從送達者, 應於專利公報公告之, 自刊登公報之日起滿三十日, 視為已送達 第 19 條有關專利之申請及其他程序, 得以電子方式為之 ; 其實施日期及辦法, 由主管機關定之 第 20 條本法有關期間之計算, 其始日不計算在內 第五十一條第三項 第一百零一條第三項及第一百十三條第三項規定之專利權期限, 自申請日當日起算 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. 第二章發明專利 第一節專利要件 第 21 條發明, 指利用自然法則之技術思想之創作 第 22 條凡可供產業上利用之發明, 無下列情事之一者, 得依本法申請取得發明專利 : 一 申請前已見於刊物或已公開使用者 二 申請前已為公眾所知悉者 發明有下列情事之一, 致有前項各款情事, 並於其事實發生之日起六個月內申請者, 不受前項各款規定之限制 : Chapter II Invention Patent Section 1: Patentability of inventions Article 21 The term "invention" as used herein refers to any creation of technical concepts by utilizing the rules of nature. Article 22 An invention which is industrially applicable and is free from any of the following conditions may obtain a patent therefor upon application in accordance with this Act: 1. Which, prior to applying for patent, has been published or put to public use; or 2. Which, prior to applying for patent, has become known to the public. Where an invention is under either of the circumstances set forth in the preceding Paragraph due to any of the following causes, and a patent application has been filed within six months from the date of occurrence of fact of the foregoing causes, such invention shall be free from the restrictive conditions set forth in the preceding 專利法 _6

7 一 因研究 實驗者 二 因陳列於政府主辦或認可之展覽會者 三 非出於申請人本意而洩漏者 申請人主張前項第一款 第二款之情事者, 應於申請時敘明事實及其年 月 日, 並應於專利專責機關指定期間內檢附證明文件 發明雖無第一項所列情事, 但為其所屬技術領域中具有通常知識者依申請前之先前技術所能輕易完成時, 仍不得依本法申請取得發明專利 第 23 條申請專利之發明, 與申請在先而在其申請後始公開或公告之發明或新型專利申請案所附說明書或圖式載明之內容相同者, 不得取得發明專利 但其申請人與申請在先之發明或新型專利申請案之申請人相同者, 不在此限 第 24 條下列各款, 不予發明專利 : 一 動 植物及生產動 植物之主要生物學方法 但微生物學之生產方法, 不在此限 二 人體或動物疾病之診斷 治療或外科手術方法 三 妨害公共秩序 善良風俗或衛生者 第二節申請 第 25 條申請發明專利, 由專利申請權人備具申請書 說明書及必要圖式, 向專利專責機關申請之 申請權人為雇用人 受讓人或繼承人時, 應敘明發明人姓名, 並附具僱傭 受讓或繼承證明文件 Paragraph: 1. Where the invention is created as a result of research or experiment; 2. Where the invention has been exhibited at an exhibition sponsored or approved by the government; or 3. Where the invention has been disclosed in an occasion not intended by the patent applicant. An applicant claiming the application of the cause set forth in Item 1 or Item 2 of the preceding Paragraph shall indicate the facts and the relevant dates in his/her application and submit evidential documents within the time limit specified by the Patent Authority. Notwithstanding the absence of the conditions set forth in Paragraph One of this Article, if the proposed invention can be easily accomplished by a person having ordinarily knowledge in the art based on prior art before the application for patent is filed, no invention patent should be granted for such invention under this act. Article 23 Where the contents of an invention claimed in a patent application are identical to the contents described in the specification or drawings submitted along with an application for invention or utility model patent that is filed prior to but laid-open or published after the filing of the present patent application, no invention patent may be granted to the invention, except that the applicant(s) of the present application is (are) the same applicant(s) of such prior invention or utility model patent application. Article 24 The following items shall not be granted an invention patent: 1. Animals, plants, and essentially biological processes for production of animals or plants, except the processes for producing microorganisms; 2. Diagnostic, therapeutic or surgical operation methods for the treatment of humans or animals; 3. An invention which is contrary to public order, morality or public health. Section 2: Application Article 25 The application for an invention patent shall be made by the person entitled to file the patent application by submitting to the Patent Authority a application, a specification, and necessary drawings. Where the person entitled to file a patent application is an employer, assignee or heir, the name of the inventor shall be indicated in the application, and the document evidencing the employment, assignment or inheritance shall be submitted along with the application. 專利法 _7

8 申請發明專利, 以申請書 說明書及必要圖式齊備之日為申請日 前項說明書及必要圖式以外文本提出, 且於專利專責機關指定期間內補正中文本者, 以外文本提出之日為申請日 ; 未於指定期間內補正者, 申請案不予受理 但在處分前補正者, 以補正之日為申請日 第 26 條前條之說明書, 應載明發明名稱 發明說明 摘要及申請專利範圍 發明說明應明確且充分揭露, 使該發明所屬技術領域中具有通常知識者, 能瞭解其內容, 並可據以實施 申請專利範圍應明確記載申請專利之發明, 各請求項應以簡潔之方式記載, 且必須為發明說明及圖式所支持 發明說明 申請專利範圍及圖式之揭露方式, 於本法施行細則定之 第 27 條申請人就相同發明在與中華民國相互承認優先權之國家或世界貿易組織會員第一次依法申請專利, 並於第一次申請專利之日起十二個月內, 向中華民國申請專利者, 得主張優先權 依前項規定, 申請人於一申請案中主張二項以上優先權時, 其優先權期間之起算日為最早之優先權日之次日 外國申請人為非世界貿易組織會員之國民且其所屬國家與我國無相互承認優先權者, 若於世界貿易組織會員或互惠國領域內, 設有住所或營業所者, The filing date of the invention patent application shall be the day which the application, the specification and necessary drawings are fully submitted. Where the specification and all necessary drawings submitted under the preceding Paragraph are written in a foreign language, and the Chinese translation thereof has been supplemented prior to date specified by the Patent Authority, the date on which the foreign language version of such documents are submitted shall be regarded as the filing date of such patent application. Failure to submit the Chinese translation thereof by or on the specified date shall cause the patent application to be dismissed provided, however, that if the Chinese translation has been supplemented prior to the execution of the dismissal, the date on which the Chinese translation is submitted shall be regarded as the filing date. Article 26 The specification referred to in the preceding Article shall contain the title of invention, description of invention, abstract of invention, and scope of claims. The description of invention shall contain a sufficiently clear and complete disclosure of contents of the invention so as to enable person skilled in the art to understand the contents of and to practice said invention. The scope of claims shall indicate distinctly the invention for which the patent is claimed. Each claim shall be written in a concise manner and must be supported by the descriptions and drawings of the invention. The manner for disclosing the description, the claims and the drawings of an invention shall be prescribed in the implementing Regulations of the Patent Act. Article 27 A patent applicant, who has filed his/her first patent application legally in respect of an invention in a member of the World Trade Organization (hereinafter referred to as the "WTO") or in a foreign country which allows ROC nationals to claim priority based on reciprocity and has filed his/her patent application for the same invention in the ROC within twelve (12) months from the filing date of his/her first patent application in said foreign country, may claim a priority for his/her ROC application. Subject to the provisions of the preceding Paragraph, in case an applicant claims for two or more priority rights in a single patent application, the beginning date for calculation the priority period shall be the day following the earliest priority date. If the foreign applicant is a citizen of a non-member country of the WTO and his/her home country does not maintain a relation for mutual recognition of priority rights with the ROC but the applicant has a residence or business office in a member country of the WTO or in the territory of a reciprocal country, the applicant shall also be 專利法 _8

9 亦得依第一項規定主張優先權 主張優先權者, 其專利要件之審查, 以優先權日為準 entitled to claim priority in accordance with the provisions set forth in Paragraph One of this Article. For a patent application claiming priority, the priority date shall be used as the reference date in the examination of the patent requirements. 第 27 條 (99 年修正 ) 申請人就相同發明在與中華民國相互承認優先權之國家或世界貿易組織會員第一次依法申請專利, 並於第一次申請專利之日起十二個月內, 向中華民國申請專利者, 得主張優先權 依前項規定, 申請人於一申請案中主張二項以上優先權時, 其優先權期間之起算日為最早之優先權日之次日 外國申請人為非世界貿易組織會員之國民且其所屬國家與我國無相互承認優先權者, 若於世界貿易組織會員或互惠國領域內, 設有住所或營業所者, 亦得依第一項規定主張優先權 主張優先權者, 其專利要件之審查, 以優先權日為準 第 28 條依前條規定主張優先權者, 應於申請專利同時提出聲明, 並於申請書中載明第一次申請之申請日及受理該申請之國家或世界貿易組織會員 申請人應於申請日起四個月內, 檢送經前項國家或世界貿易組織會員證明受理之申請文件 違反前二項之規定者, 喪失優先權 Article 28 An applicant claiming priority in accordance with the preceding Article shall, when applying for patent, simultaneously file a statement and declare in the written application the filing date and the application number of the corresponding foreign application as well as the foreign country in which the same application was filed. The applicant shall, within four (4) months from the filing date, submit the documents issued by the government of the foreign country declared in the preceding Paragraph evidencing the acceptance of said foreign application. Violation of the provisions set forth in the preceding two Paragraphs shall cause the deprivation of the priority right. 第 28 條 (99 年修正 ) 依前條規定主張優先權者, 應於申請專利同時提出聲明, 並於申請書中載明第一次申請之申請日及受理該申請之國家或世界貿易組織會員 申請人應於申請日起四個月內, 檢送經前項國家或世界貿易組織會員證明受理之申請文 專利法 _9

10 件 違反前二項之規定者, 喪失優先權 第 29 條申請人基於其在中華民國先申請之發明或新型專利案再提出專利之申請者, 得就先申請案申請時說明書或圖式所載之發明或創作, 主張優先權 但有下列情事之一者, 不得主張之 : 一 自先申請案申請日起已逾十二個月者 二 先申請案中所記載之發明或創作已經依第二十七條或本條規定主張優先權者 三 先申請案係第三十三條第一項規定之分割案或依第一百零二條之改請案 四 先申請案已經審定或處分者 前項先申請案自其申請日起滿十五個月, 視為撤回 先申請案申請日起十五個月後, 不得撤回優先權主張 依第一項主張優先權之後申請案, 於先申請案申請日起十五個月內撤回者, 視為同時撤回優先權之主張 申請人於一申請案中主張二項以上優先權時, 其優先權期間之起算日為最早之優先權日之次日 主張優先權者, 其專利要件之審查, 以優先權日為準 依第一項主張優先權者, 應於申請專利同時提出聲明, 並於申請書中載明先申請案之申請日及申請案號數, 申請人未於申請時提出聲明, 或未載明先申請案之申請日及申請案號數者, 喪失優先權 依本條主張之優先權日, 不得早於中華民國九十年十月二十六日 Article 29 Where an applicant files a further application based on a prior invention application or utility model application filed by himself/herself in the ROC, he/she may claim for the priority right in respect of the invention or creation described in the specification or drawings submitted along with his/her prior patent application, except under the following circumstances: 1. Where a period of twelve (12) months has elapsed from the filing date of the prior patent application; 2. Where a claim for priority right has been made in accordance with the provisions of Article 27 or this Article in respect of the invention or creation described in the prior patent application; 3. Where the prior patent application has been divided into a divisional application in accordance with the provisions of Paragraph One, Article 33, or has been converted in accordance with the provisions of Article 102; 4. Where the examination decision has been made in respect of the prior patent application. The prior patent application referred to in the preceding Paragraph shall be deemed having been withdrawn after 15 months from its filing date. A priority claim in respect of a prior patent application may not be withdrawn after 15 months from the filing date of the prior application. Where a later application filed with priority claim in accordance with Paragraph One of this Article is withdrawn within fifteen (15) months from the filing date of the prior application, the priority claim shall be deemed withdrawn at the same time. Where an applicant claims two or more priority rights in a single application, the beginning date for calculation of the priority period shall be the day following the first priority date. For a patent application claiming priority, the priority date shall be used as the reference date during the patentability examination. A statement for claiming priority in accordance with Paragraph One under this Article shall be filed concurrently while filing a patent application, and the filing date and the application number of such prior patent application shall be indicated in the application. Failure of the applicant to file the statement or to indicate the filing date and the application number of the prior patent application shall cause the deprivation of priority. The claimed priority date under this Article shall not be earlier than October 26, 專利法 _10

11 第 30 條申請生物材料或利用生物材料之發明專利, 申請人最遲應於申請日將該生物材料寄存於專利專責機關指定之國內寄存機構, 並於申請書上載明寄存機構 寄存日期及寄存號碼 但該生物材料為所屬技術領域中具有通常知識者易於獲得時, 不須寄存 申請人應於申請日起三個月內檢送寄存證明文件, 屆期未檢送者, 視為未寄存 申請前如已於專利專責機關認可之國外寄存機構寄存, 而於申請時聲明其事實, 並於前項規定之期限內, 檢送寄存於專利專責機關指定之國內寄存機構之證明文件及國外寄存機構出具之證明文件者, 不受第一項最遲應於申請日在國內寄存之限制 第一項生物材料寄存之受理要件 種類 型式 數量 收費費率及其他寄存執行之辦法, 由主管機關定之 第 31 條同一發明有二以上之專利申請案時, 僅得就其最先申請者准予發明專利 但後申請者所主張之優先權日早於先申請者之申請日者, 不在此限 前項申請日 優先權日為同日者, 應通知申請人協議定之, 協議不成時, 均不予發明專利 ; 其申請人為同一人時, 應通知申請人限期擇一申請, 屆期未擇一申請者, 均不予發明專利 各申請人為協議時, 專利專責機關應指定相當期間通知申請人申報協議結果, 屆期未申報者, 視為協議不成 Article 30 In applying for an invention patent involving any biological material or the utilization of any biological material, the applicant shall, no later than the filing date, deposit the biological material at a local deposit institute designated by the Patent Authority and shall indicate in the application the name of the deposit institute, and the date and the serial number of such deposit provided, however, that the deposit is not required if the biological material involved can be easily obtained by ordinarily skilled person in the relevant art to the biological material. The applicant shall, within three (3) months from the filing date of the application, submit to the Patent Authority the document(s) evidencing the deposit. If such evidentiary documents are not submitted before the foregoing period, the deposit shall be deemed not having been effected. In the event the biological material involved has been deposited, before filing the patent application, at a foreign deposit institution which is recognized by the Patent Authority and the fact of such deposit has been stated in the application, and the deposit certificates issued by both a designated local deposit institution and the foreign deposit institution have been submitted within the time limit specified in the preceding Paragraph, the requirement for deposit before filing the application as set forth in Paragraph One of this Article may be exempted. Regulations governing the accepting conditions, the categories, the types, and the quantity of such biological materials to be deposited, the rates of the deposit fees, and other matters in connection with the depositing operation shall be prescribed by the Competent Authority. Article 31 When two or more applications are filed for the same invention, only the application filed first may be granted an invention patent, except in the case where the priority date claimed by the later 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 date, the applicants shall be requested to reach a compromise between themselves. If such compromise cannot be reached, none of the applicants shall be granted an invention patent. In case the applications are filed by the same applicant, the applicant shall be requested, by a notice, to select one of such applications for filing within a given time limit; and failure of the applicant to select within the time limit shall cause the dismissal of all such applications. While the applicants involved are in the process of negotiating for a compromise, the Patent Authority may notify such applicants to submit the results of the negotiation within an appropriate period of time to be set by the Patent Authority. Failure to submit the 專利法 _11

12 同一發明或創作分別申請發明專利及新型專利者, 準用前三項規定 第 32 條申請發明專利, 應就每一發明提出申請 二個以上發明, 屬於一個廣義發明概念者, 得於一申請案中提出申請 第 33 條申請專利之發明, 實質上為二個以上之發明時, 經專利專責機關通知, 或據申請人申請, 得為分割之申請 前項分割申請應於原申請案再審查審定前為之 ; 准予分割者, 仍以原申請案之申請日為申請日 如有優先權者, 仍得主張優先權, 並應就原申請案已完成之程序續行審查 第 34 條發明為非專利申請權人請准專利, 經專利申請權人於該專利案公告之日起二年內申請舉發, 並於舉發撤銷確定之日起六十日內申請者, 以非專利申請權人之申請日為專利申請權人之申請日 發明專利申請權人依前項規定申請之案件, 不再公告 第三節審查及再審查 第 35 條專利專責機關對於發明專利申請案之實體審查, 應指定專利 negotiation results within the time limit shall be deemed a failure of negotiation. Where an invention patent application and a utility model patent application are filed separately in respect of the same invention or creation, the provisions set forth in the preceding three (3) Paragraphs shall apply mutatis mutandis. Article 32 An application for a patent for invention shall be limited to one invention. Two or more inventions belonging to a single general inventive concept may be filed as one application. Article 33 In the case of a patent application which substantially involves two or more inventions, the application may, upon notice given by the Patent Authority or the request by the applicant, be divided into two or more separate divisional applications. The divisional applications set forth in the preceding Paragraph shall be filed before the re-examination decision on the original application is rendered. If divisional applications are accepted, the filing date of the original application shall still be taken as the filing date of the divisional applications, and the applicant shall remain entitled to claim priority, if any, and the Patent Authority shall proceed with the examination procedures left unfinished in the examination of the original application. Article 34 When an invention patent is granted upon application filed by a person other than the person entitled to file such application, the filing date of the application filed by the person not entitled to file the application shall be taken as the filing date of the application filed by the person entitled to file the application, if the person entitled to file the patent application files an invalidation action against the patent application filed by the person not entitled to file the application within two (2) years from the publication date of the patent application in question, and files his/her own patent application within sixty (60) days from the day the invalidation decision becomes irrevocable. No publication will be given in respect of the application filed in accordance with the provisions set forth in the preceding Paragraph by the person entitled to file the invention patent application. Section 3: Examination and Re-examination Article 35 The Patent Authority shall designate patent examiner(s) to conduct substantive examination on an invention patent application. 專利法 _12

13 審查人員審查之 專利審查人員之資格, 以法律定之 第 36 條專利專責機關接到發明專利申請文件後, 經審查認為無不合規定程式, 且無應不予公開之情事者, 自申請日起十八個月後, 應將該申請案公開之 專利專責機關得因申請人之申請, 提早公開其申請案 發明專利申請案有下列情事之一者, 不予公開 : 一 自申請日起十五個月內撤回者 二 涉及國防機密或其他國家安全之機密者 三 妨害公共秩序或善良風俗者 第一項 前項期間, 如有主張優先權者, 其起算日為優先權日之次日 ; 主張二項以上優先權時, 其起算日為最早之優先權日之次日 第 37 條自發明專利申請日起三年內, 任何人均得向專利專責機關申請實體審查 依第三十三條第一項規定申請分割, 或依第一百零二條規定改請為發明專利, 逾前項期間者, 得於申請分割或改請之日起三十日內, 向專利專責機關申請實體審查 依前二項規定所為審查之申請, 不得撤回 未於第一項或第二項規定之期間內申請實體審查者, 該發明專利申請案, 視為撤回 第 38 條申請前條之審查者, 應檢附申請書 專利專責機關應將申請審查之事實, 刊載於專利公報 申請審查由發明專利申請人以 The qualification of patent examiners shall be prescribed by a separate act. Article 36 After receipt of the documents of an invention patent application, if the Patent Authority considers, through examination, that nothing is contrary to the formality requirements and should not be laid-open, the Patent Authority shall have such application laid-open after a period of eighteen (18) months from the filing date of such patent application. The Patent Authority may advance the laying-open of a patent application at the request of the applicant. Under any of the following circumstances, an invention patent application shall not be laid-open: 1. Where the patent application has been withdrawn within fifteen (15) months from the filing date of said application; 2. Where the contents of the invention involve the national defense secret or any other secret pertaining to national security; or 3. Where the contents of the invention are detrimental to morality or public health. The period set forth in Paragraph One and the preceding Paragraph of this Article, if any priority is claimed, is calculated from the day following the priority date, or following the earliest priority date if two or more priority are claimed. Article 37 Any person may, within three (3) years from the filing date of an invention patent application, apply to the Patent Authority for a substantive examination. If the divisional application under Paragraph One, Article 33 is filed, or an invention patent application is converted under Article 102, after the time frame set forth in the preceding Paragraph, the application for substantive examination may be filed within thirty (30) days from the filing date of the divisional applications or the filing date of the conversion application. No substantive examination application filed under the preceding two Paragraphs may be withdrawn. If substantive examination is not applied within the period specified in Paragraph One or Paragraph Two of this Article, the invention patent application shall be deemed withdrawn. Article 38 When applying for substantive examination under the preceding Article, a application shall be submitted. The Patent Authority shall post the fact of an application for substantive examination in the Patent Gazette. Where the substantive examination application is filed by a person 專利法 _13

14 外之人提起者, 專利專責機關應將該項事實通知發明專利申請人 有關生物材料或利用生物材料之發明專利申請人, 申請審查時, 應檢送寄存機構出具之存活證明 ; 如發明專利申請人以外之人申請審查時, 專利專責機關應通知發明專利申請人於三個月內檢送存活證明 第 39 條發明專利申請案公開後, 如有非專利申請人為商業上之實施者, 專利專責機關得依申請優先審查之 為前項申請者, 應檢附有關證明文件 第 40 條發明專利申請人對於申請案公開後, 曾經以書面通知發明專利申請內容, 而於通知後公告前就該發明仍繼續為商業上實施之人, 得於發明專利申請案公告後, 請求適當之補償金 對於明知發明專利申請案已經公開, 於公告前就該發明仍繼續為商業上實施之人, 亦得為前項之請求 前二項規定之請求權, 不影響其他權利之行使 第一項 第二項之補償金請求權, 自公告之日起, 二年間不行使而消滅 第 41 條前五條規定, 於中華民國九十一年十月二十六日起提出之發明專利申請案, 始適用之 第 42 條專利審查人員有下列情事之一 other than the applicant of the invention patent application concerned, the Patent Authority shall inform the applicant of said invention patent application of such fact. Where a substantive examination application is filed by the applicant of an invention patent application pertaining to a biological material or a method for utilizing any biological material, a certificate of viability issued by the deposit institution concerned shall be submitted along with the application; whereas, if such substantive examination application is filed by a person other than the applicant of the invention patent application, the Patent Authority shall notify the applicant of the invention patent application to submit such a certificate of viability within three (3) months. Article 39 After an invention patent application is laid-open, if any person other than the applicant of the invention patent application puts such invention to practice for commercial purposes, the Patent Authority may effect the examination on a priority basis upon application. For filing the application under the preceding Paragraph, relevant evidential documents shall be submitted along with the application. Article 40 Where a person has received a written notification of the contents of an invention patent application from the applicant thereof after laying-open of such patent application and continues to put the invention to practice for commercial purpose in the interim after such notification and prior to the publication, the applicant of the invention patent application may, after the publication of his/her invention patent application, make a claim against said person for an appropriate pecuniary compensation. The claim referred to in the preceding Paragraph may also be made against a person who knows that an invention patent application has been laid-open but still continues to put the invention to practice for commercial purpose prior to the publication of the application. The right to claim provided for in the preceding two Paragraphs shall have no prejudice to the exercise of any other rights. The right to claim for pecuniary compensation set forth in Paragraph One and Paragraph Two of this Article shall become extinguished if not exercised within two years from the date of publication of said invention patent application. Article 41 The provisions of the preceding five Articles shall be applicable only to the invention patent applications filed on or after October 26, Article 42 Under any of the following circumstances, a patent examiner shall 專利法 _14

15 者, 應自行迴避 : 一 本人或其配偶, 為該專利案申請人 代理人 代理人之合夥人或與代理人有僱傭關係者 二 現為該專利案申請人或代理人之四親等內血親, 或三親等內姻親 三 本人或其配偶, 就該專利案與申請人有共同權利人 共同義務人或償還義務人之關係者 四 現為或曾為該專利案申請人之法定代理人或家長家屬者 五 現為或曾為該專利案申請人之訴訟代理人或輔佐人者 六 現為或曾為該專利案之證人 鑑定人 異議人或舉發人者 專利審查人員有應迴避而不迴避之情事者, 專利專責機關得依職權或依申請撤銷其所為之處分後, 另為適當之處分 第 43 條申請案經審查後, 應作成審定書送達申請人或其代理人 經審查不予專利者, 審定書應備具理由 審定書應由專利審查人員具名 再審查 舉發審查及專利權延長審查之審定書, 亦同 第 44 條發明專利申請案違反第二十一條至第二十四條 第二十六條 第三十條第一項 第二項 第三十一條 第三十二條或第四十九條第四項規定者, 應為不予專利之審定 第 45 條申請專利之發明經審查認無不予專利之情事者, 應予專利, 並應將申請專利範圍及圖式公 exclude from exercising his/her own initiative: 1. Where the patent examiner or his/her spouse is the patent applicant, or the patent attorney, or a partner of the patent attorney or a person having an employment relation with the patent attorney of the applicant of the patent to be examined; 2. Where the patent examiner is presently related to the patent applicant or the patent attorney of the patent application to be examined by consanguinity within the fourth degree or by affinity within the third degree; 3. Where the patent examiner or his/her spouse has the relation with the patent applicant as a joint obligee, joint obligor or debt-paying obligor in respect of the patent application to be examined; 4. Where the examiner is or was the statutory representative, the head or a member of the family of the applicant of the patent application to be examined; 5. Where the examiner is or was an attorney ad litem or assistant in litigation of the applicant of the patent application to be examined; or 6. Where the examiner is or was a witness, or an expert witness, or an opposition petitioner, or an invalidation petitioner of the present patent application. Where an examiner should but did not withdraw from exercising his/her function, the Patent Authority may, ex officio or at request, revoke the measure he/she took and take another appropriate measure instead. Article 43 Upon completion of examination of a patent application, a written decision shall be rendered and issued to the applicant or his/her patent attorney. When a patent application is found not patentable, the reasons therefor shall be given in the written decision of examination. A written decision of examination shall bear the name of the patent examiner(s). This requirement shall also apply to any written decision of re-examination, opposition action, invalidation action and patent-term extension. Article 44 Any invention patent application which is found to be contrary to the provisions set out in Articles 21 through 24; Article 26; Paragraph One, or Paragraph Two, Article 30; Article 31; Article 32; or Paragraph Four, Article 49 of this Act shall not be patented. Article 45 Where the examination result reveals no reason to deny the patentability of an invention, such invention shall be patented, and the claims and the drawings disclosed in that patent application shall 專利法 _15

16 告之 經公告之專利案, 任何人均得申請閱覽 抄錄 攝影或影印其審定書 說明書 圖式及全部檔案資料 但專利專責機關依法應予保密者, 不在此限 第 46 條發明專利申請人對於不予專利之審定有不服者, 得於審定書送達之日起六十日內備具理由書, 申請再審查 但因申請程序不合法或申請人不適格而不受理或駁回者, 得逕依法提起行政救濟 經再審查認為有不予專利之情事時, 在審定前應先通知申請人, 限期申復 第 47 條再審查時, 專利專責機關應指定未曾審查原案之專利審查人員審查, 並作成審定書 前項再審查之審定書, 應送達申請人 第 48 條專利專責機關於審查發明專利時, 得依申請或依職權通知申請人限期為下列各款之行為 : 一 至專利專責機關面詢 二 為必要之實驗 補送模型或樣品 前項第二款之實驗 補送模型或樣品, 專利專責機關必要時, 得至現場或指定地點實施勘驗 第 49 條專利專責機關於審查發明專利時, 得依職權通知申請人限期補充 修正說明書或圖式 申請人得於發明專利申請日起 be published. Any person may apply for access to the written decision of examination, specification, drawings, and the entire file and information in connection with a specific patent application which has been allowed and published so as to read or to make hand, photographic or reproduced copy of the relevant information thereof, except for the information which should be kept confidential by the Patent Authority in accordance with the act. Article 46 In case of dissatisfaction with a rejection decision rendered for an invention patent application, the applicant may, within sixty (60) days from the date the rejection decision is served, apply for re-examination by submitting a statement of reasons. If the application is rejected on procedural grounds or on the ground of the ineligibility of the applicant, the applicant may directly appeal for an administrative remedy in accordance with the act. If there is any reason to deny the patentability of an invention patent through the re-examination procedure, the Patent Authority shall, before rendering a re-examination decision, send to the applicant a notice requesting that a response be made within a specified time limit. Article 47 For re-examination, the Patent Authority shall designate an examiner who has not participated in the examination of the original patent application to conduct the re-examination and render a written decision. The written re-examination decision shall be served to the applicant. Article 48 When examining an invention patent application, the Patent Authority may, ex officio or at a request, notify the patent applicant to do any of the following acts within a specified time limit: 1. To appear before the Patent Authority for an interview; or 2. To perform necessary experiment(s) or to supplement model(s) or sample(s). The Patent Authority may, when necessary, visit the site or a designated place for inspection and observation of the experiments or models or samples as required under Item 2 of the preceding Paragraph. Article 49 In the course of examining an invention patent application, the Patent Authority may, ex officio, notify a patent applicant to make a supplement or amendment to the specifications and/or drawings within a specified time limit. A patent applicant may, within fifteen (15) months from the filing 專利法 _16

17 十五個月內, 申請補充 修正說明書或圖式 ; 其於十五個月後申請補充 修正說明書或圖式者, 仍依原申請案公開 申請人於發明專利申請日起十五個月後, 僅得於下列各款之期日或期間內補充 修正說明書或圖式 : 一 申請實體審查之同時 二 申請人以外之人申請實體審查者, 於申請案進行實體審查通知送達後三個月內 三 專利專責機關於審定前通知申復之期間內 四 申請再審查之同時, 或得補提再審查理由書之期間內 依前三項所為之補充 修正, 不得超出申請時原說明書或圖式所揭露之範圍 第二項 第三項期間, 如主張優先權者, 其起算日為優先權日之次日 第 50 條發明經審查有影響國家安全之虞, 應將其說明書移請國防部或國家安全相關機關諮詢意見, 認有秘密之必要者, 其發明不予公告, 申請書件予以封存, 不供閱覽, 並作成審定書送達申請人 代理人及發明人 申請人 代理人及發明人對於前項之發明應予保密, 違反者, 該專利申請權視為拋棄 保密期間, 自審定書送達申請人之日起為期一年, 並得續行延展保密期間每次一年, 期間屆滿前一個月, 專利專責機關應諮詢國防部或國家安全相關 date of such patent application, make a supplement or amendment to the specifications and/or drawings. If the supplement or amendment to the specifications and/or drawings is filed after elapse of the fifteen (15) months, the application shall be laid-open as it was originally filed. After fifteen (15) months from the filing date of the invention patent application, a patent applicant may make a supplement or amendment to the specification and/or drawings only on the dates or during the periods as specified below: 1. At the same time of filing an application for substantive examination; 2. Within three (3) months from the service date of a notice of substantive examination issued in respect of the patent application concerned, if the substantive examination application is filed by a person other than the patent applicant; 3. During the time limit for response as specified in a notice given by the Patent Authority prior to its written reasons for rejection of the patent application concerned; or 4. At the time of filing an application for re-examination, or during the period fixed for filing a supplemental statement of reasons for re-examination. The contents of the supplement or amendment made under the preceding three Paragraphs shall not exceed the scope of the specification or drawing disclosed in the original patent application. Where a claiming priority is made, the periods specified in Paragraph Two and Paragraph Three under this Article shall be calculated from the day following the priority date. Article 50 Where an invention is considered, in the process of examination, to be likely to affect the national security, the specification of such invention shall be referred to the Ministry of National Defense or the relevant national security authorities for their opinions. If it is deemed necessary to keep such invention confidential, the invention shall not be published, and the documents included in the patent application package shall be sealed and kept in a secret file not accessible to the public. In addition, a written decision to such effect shall be made and served to the patent applicant, his/her patent attorney and the inventor accordingly. The patent applicant, his/her patent attorney and the inventor shall keep the confidentiality of the invention of the nature as described in the preceding Paragraph. Upon violation of this confidential clause by any of the aforesaid parties, the right to apply for patent for such invention shall be deemed to have been waived. The confidential period shall last for one year from the date the written decision is served on the patent applicant and may be extended on a year-by-year basis. The Patent Authority shall, within one month prior to the expiry of the confidential period, consult with the Ministry of National Defense or the relevant national 專利法 _17

18 機關, 無保密之必要者, 應即公告 就保密期間申請人所受之損失, 政府應給與相當之補償 第四節專利權 第 51 條申請專利之發明, 經核准審定後, 申請人應於審定書送達後三個月內, 繳納證書費及第一年年費後, 始予公告 ; 屆期未繳費者, 不予公告, 其專利權自始不存在 申請專利之發明, 自公告之日起給予發明專利權, 並發證書 發明專利權期限, 自申請日起算二十年屆滿 第 52 條醫藥品 農藥品或其製造方法發明專利權之實施, 依其他法律規定, 應取得許可證, 而於專利案公告後需時二年以上者, 專利權人得申請延長專利二年至五年, 並以一次為限 但核准延長之期間, 不得超過向中央目的事業主管機關取得許可證所需期間, 取得許可證期間超過五年者, 其延長期間仍以五年為限 前項申請應備具申請書, 附具證明文件, 於取得第一次許可證之日起三個月內, 向專利專責機關提出 但在專利權期間屆滿前六個月內, 不得為之 主管機關就前項申請案, 有關延長期間之核定, 應考慮對國民健康之影響, 並會同中央目的事業主管機關訂定核定辦法 第 53 條 security authorities about the continuation of the confidential period. If the confidential requirement of a patent case is no longer necessary, such patent shall be published. The Government shall make appropriate compensation for any damages to be sustained by the patent applicant during the confidential period. Section 4: Patent Rights Article 51 A patent application filed in respect of an invention is approved by a written decision shall be published only after the issue fee and the first year annuity have been paid by the applicant within three (3) months after the service of the aforesaid written decision; if the foregoing fees have not been paid upon expiry of the above-given deadline, no publication shall be made, and the patent right for said invention shall not exist ab initio,. The granted patent rights shall being on the date of publication, and a patent certificate shall be issued thereto. The term of an invention patent right shall ends with twenty (20) years from the filing date of the patent application. Article 52 In the case of invention patents covering pharmaceuticals, agrichemicals, or processes for preparing the same, a patentee may apply for an extension of his/her patent term for two (2) to five (5) years, if, pursuant to other acts or regulations, a prior government approval must be secured to practice such patents, for which the processing exceeds two (2) years after the publication of the patents. Only one such extension shall be permitted provided, however, that the patent term extended shall not exceed the length of time required for obtaining an approval from the central government authority in charge of end enterprises. In case the length of time required for obtaining an approval exceeds five (5) years, the term of extension shall still be limited to five (5) years. Any application for an extension of the term of a patent right must be filed with the Patent Authority by submitting a written application together with supporting evidence within three (3) months from the date of the first government approval involved provided, however, that no extension application shall be filed within six (6) months prior to the expiration of the original patent term. To determine the term of extension of a patent under the preceding Paragraph, the Competent Authority shall take into consideration the impact of the extension on the health of nationals in general and shall prescribe the approving rules in conjunction with the central government authority in charge of the end enterprises concerned. Article 53 專利法 _18

19 專利專責機關對於發明專利權延長申請案, 應指定專利審查人員審查, 作成審定書送達專利權人或其代理人 第 54 條任何人對於經核准延長發明專利權期間, 認有下列情事之一者, 得附具證據, 向專利專責機關舉發之 : 一 發明專利之實施無取得許可證之必要者 二 專利權人或被授權人並未取得許可證 三 核准延長之期間超過無法實施之期間 四 延長專利權期間之申請人並非專利權人 五 專利權為共有, 而非由共有人全體申請者 六 以取得許可證所承認之外國試驗期間申請延長專利權時, 核准期間超過該外國專利主管機關認許者 七 取得許可證所需期間未滿二年者 專利權延長經舉發成立確定者, 原核准延長之期間, 視為自始不存在 但因違反前項第三款 第六款規定, 經舉發成立確定者, 就其超過之期間, 視為未延長 第 55 條專利專責機關認有前條第一項各款情事之一者, 得依職權撤銷延長之發明專利權期間 專利權延長經撤銷確定者, 原核准延長之期間, 視為自始不存在 但因違反前條第一項第三款 第六款規定, 經撤銷確定者, 就其超過之期間, 視為未延長 第 56 條物品專利權人, 除本法另有規定者外, 專有排除他人未經其同意而製造 為販賣之要約 The Patent Authority shall designate examiner(s) to examine an invention patent extension application and shall make written decision which shall be served on the patentee or his/her patent attorney. Article 54 Under any of the following circumstances, any person may file an invalidation action together with relevant evidence with the Patent Authority against the term extension of an invention patent granted by the Patent Authority: 1. If it is not necessary to obtain a government approval for practicing the patented invention at issue; 2. If the patentee or his/her licensee has not obtained a government approval as required; 3. If the approved term of extension exceeds the length of time in which the patented invention can not be practiced; 4. If the patent extension application is filed by a person other than the patentee; 5. If the patent right is jointly owned by two or more persons, and the extension application is not filed in the name of all co-owners; 6. In case the application for extension was based on the time spent in conducting experiments or testing in a foreign country, the extended term allowed by the Patent Authority exceeds the duration recognized by the patent authority of such foreign country; or 7. The time required for obtaining an approval is less than two years. If an invalidation action against the grant of a patent term extension has become irrevocably sustained, the extended patent term originally granted shall become non-existing ab initio. However, if such invalidation action is irrevocably sustained on the grounds listed in Item (3) or Item (6) of the preceding Paragraph, only the exceeding term shall be deemed non-existing. Article 55 When the Patent Authority acknowledges the existence of any of the events set forth in Paragraph One of the preceding Article, it may, ex officio, revoke the extended term of the invention patent right at issue. When the revocation of the approved extension of the term of a patent right becomes irrevocable, the originally approved extension shall be deemed not in existence ab initio; however, if the irrevocable revocation is rendered as a result of violation of the provisions of Item 3 or Item 6 of Paragraph One of the preceding Article, the exceeding duration shall be deemed non-existing. Article 56 Unless otherwise provided for in this Act, the patentee of a patented article shall have the exclusive right to preclude other persons from manufacturing, making an offer for sale, selling, using, or importing 專利法 _19