Patents-Faq

Question 1

What are patents?

Accepted Answer

They refer to the rights awarded by the Intellectual Property Office after it has examined the application filed by someone to protect his or her invention or creation and confirming compliance with the Patent Act. Object patentees are entitled to exclusively manufacture, sell, use or import their patented objects for sales purpose during a specific period of time, in which others are not allowed to do so without approval of the object patentees. As for method patentees, they are entitled to exclusively use, sell or import their patented methods for sales purpose for direct goods production during a specific period of time.

Question 2

Is it possible that a patent application will be divulged after submission?

Accepted Answer

Except for early publication cases in which the patent cases in application will be made public after 18 months from the application date (or from the earliest preemption right claiming date for those that claim the preemption right), all application cases will be kept confidential without being disclosed prior to approval announcement being made or patents being made public. In case of divulgence, the offender will take the criminal responsibility for divulgence of secrets, as well as civil responsibility for damage compensation.

Question 3

Is it required to file a patent application with the country where the products are going to be exported?

Accepted Answer

Given that patents fall in the territoriality principle, the products will not be protected until taking out a patent in the country in question.

Question 4

Who can file a patent application?

Accepted Answer

An inventor, a utility model creator, a designer, or the assignee or successor thereof has the right to apply for a patent. However, if the creation is made by an employee in the course of performing job duties, only the employer thereof (such as a company) may apply for a patent.

Question 5

What is the utility model patent technical evaluation report?

Accepted Answer

Formality examination is used for the utility model patent; it does not give corporeal examination for conformity with patentability, which may lead to considerable instability and uncertainty for the content of utility parent rights. In the case that a utility model patentee takes advantage of the uncertain rights and misuses them, it may result in abuse of the rights and greatly harm third parties in their technical use and development. Hence, there is a utility model patent technical evaluation report system. According to Article 115-1 of the Patent Act, the utility model patent technical evaluation report is available for anyone who applies for it to the patent authority, so as to confirm if their utility model patent meets the patentability requirements. Nevertheless, as the utility model patent technical evaluation report is not a law-binding document, instead of an administrative disposition, it is only used as the reference for the exercise of the rights or technical utilization. Anyone who considers a utility model patent not qualified for approval shall file for patent invalidation according to Article 119 of the Patent Act, before revoking the utility model patent rights in question.

Question 6

Who is eligible to apply for the utility model patent technical evaluation report?

Accepted Answer

Anyone including the patentee is allowed to apply for the report to the Intellectual Property Office.

Question 7

When can a utility model patent technical evaluation report be applied?

Accepted Answer

The application can be submitted after the utility model patent application case has being announced. In the case that a utility model patent has been approved and the applicant has also paid the certificate fee and first year’s annual patent fee, the patent case is clearly in the position to make an announcement and acquire the patent rights even though an announcement has yet to be made. By taking the public and administration convenience into account, the application for the technical evaluation report filed in the period will be accepted by the Intellectual Property Office. However, the Intellectual Property Office will not process it until the announcement of the utility model patent case.

Question 8

In the event that the certificate for the utility model patent has been acquired but the technical evaluation report shows unfavorable to the patent, would the certificate still be valid?

Accepted Answer

The results of a utility model patent technical evaluation report will not affect any approved patent rights, so the approved patent rights can remain valid until being revoked. However, when exercising the rights, the patentee shall be precautious and follow Article 117 of the Patent Act.

Question 9

How can a patent’s efficacy be maintained?

Accepted Answer

In principle, be sure to pay the annual fee in a timely manner so that the patent rights will not go extinct. In case of reporting for invalidation from others, the patentee shall not fail to plead against the reporting and defend the patent rights from being revoked.

Question 10

Are patent rights still valid during the reporting period?

Accepted Answer

During the reporting period, the patent rights in question still remain valid. They will not become invalid due to the reporting procedure. Thus, the patentee shall still continue to pay the annual fee in order to maintain the patent’s validity.