Worldwide patent applications

The patent applicant shall be the person who files a patent application with the IPIM in name and shall be the subject who can independently exercise the rights and obligations in accordance with the law. In addition to natural and legal persons, public law organizations with independent budgets, such as public schools, government agencies, or public buildings, may be recognized as applicants in practice, and if there is any doubt about the applicant’s eligibility, they may notify them to attach the organizational regulations for review.

• If the patent application is filed in the name of a branch office, the office will notify the head office as the applicant if the branch is not a qualified applicant because the branch is a branch under the jurisdiction of the head office, and the legal personality of the branch and the head office is single and inseparable, and cannot be the subject of rights and obligations.
• If a recognized foreign company has a branch in Taiwan and operates in China, it should still be the applicant in the name of the foreign head office when filing a patent application, but the person in charge of the Taiwan branch of the foreign company may be the representative of the application.
• In the case of a branch of a foreign company established in a country other than the place where the head office is established (hereinafter referred to as the foreign branch), the foreign branch may be the applicant for a patent if the foreign branch has independent legal personality according to the domestic law of the place where it is established.
• Therefore, if a foreign branch is used as the patent applicant, the IPIM will notify the applicant to make corrections within a time limit, and the applicant may change to the name of the foreign head office as the applicant, or attach the supporting documents that the foreign branch has independent legal personality in the place of establishment.

The patent applicant should be a natural or legal person. A sole proprietorship or partnership shall not be a patent applicant if it is not the subject of rights and obligations. However, a representative or all partners may file a patent application for the applicant.

If the right to apply for a patent is co-owned, the application shall be filed by all the co-owners. Except for the withdrawal or abandonment of the application, the division of the application, the amendment, or the joint signature of the application as otherwise provided by the Patent Law, the rest of the proceedings may be carried out by each person individually. However, if there is a representative of the agreement, the agreement shall prevail. If no agent is appointed, one person shall be appointed as the person to be served, and if the person to be served is not designated, the applicant will be notified to designate the person to be served within a time limit, and if no agent is appointed within the time limit, the applicant in the first order shall be the person to be served, and at the same time, the matters to be served shall be notified to others in a copy, and service shall take effect when the service is made on the applicant in the first order.

The filing date refers to the date on which the applicant prepares the relevant documents for patent application and files a patent application with the IPIM. The filing date of the patent application is related to the examination benchmark of the patent requirements.

If there are some deficiencies in the description and diagram of the invention (model) in the application, IPIM will notify the applicant to correct them, and the applicant will be dealt with according to the applicant’s subsequent behavior as follows:

• If the applicant has completed the amendment, the date of amendment shall be the date of application.
• If the applicant does not correct the disclosure of the substantive technical content without affecting the disclosure of the substantive technical content, the filing date shall be the date of the original application.
• If the applicant makes an amendment and claims that the amendment has been made in the prior application for claiming priority and has been approved by the Bureau, the date of the original application shall be regarded as the filing date.
• After the correction is made, all the contents of the amendment shall be withdrawn within 30 days after the delivery of the disposition confirmation document on the date of application, and the date of the original application shall be regarded as the date of application.
• If the application is not corrected or replied within the specified period, the application will not be accepted.

The corrected Chinese copy shall be translated correctly and completely according to the other version at the time of application as the benchmark text for examination by the Department. The amended Chinese version will not be patented if it exceeds the scope disclosed in the foreign version at the time of application.

If the applicant submits an application in a text other than the application, the description and diagram shall fully disclose the content of the technology or technique for which the patent is to be sought. During the procedure review, if it is found that there is a discontinuity in the page number or diagram number of the foreign language specification from the formal examination, a notice will be given to make corrections within a time limit, and its legal effect shall be handled in accordance with the principle of missing Chinese instructions or schemas. The same applies to the applicant who finds that there are some deficiencies in the specification or any defects in the diagram.

In order to be prudent, the apostille of the patent certificate must be photocopied and returned to the patentee on a case-by-case basis.

The inventor shall be subject to the inventor field on the application form at the time of application. After the patent application is filed, if the applicant applies for the addition of an inventor, the application form and the supporting documents signed by all the inventors after the addition shall be attached. If the applicant applies for deletion of the inventor, the application form and the supporting documents signed by the deleted inventor declaring that he is indeed not the inventor in the case shall be attached; If the application for correction of the inventor due to error is made, the application form should be attached stating the reason for the correction (e.g. the agent accidentally typed in the inventor’s information in the other case) and the relevant supporting documents (e.g. the applicant’s original entrustment information, proof of application rights, employment contract, etc.).

No, if one of the assignors or transferees of the registered assignment of the right to apply for a patent application is a domestic company, and the representatives of both companies are the same person, one of the parties shall designate a separate person representing the company.

• The deed of assignment must contain an expression of intent between the transferor and the transferee, and be signed by both parties. However, if the transferor has unilaterally signed the contract, and the transferee applies for the registration of the transfer, indicating that both parties have the same intentions, the transferee shall sign the transfer contract at this time.
• The contract may be replaced by a photocopy, provided that the interpretation is consistent with the original or the original.

• How to assert international priority: To claim international priority, the first filing date of the foreign country and the country (WTO member) and the case number must be declared at the same time as the application. If a plural priority is asserted, the basic case of each priority shall be declared. If the filing date of the multiple priority claims and the country or WTO member that received the application are the same, the basic case information to be claimed must still be stated one by one, otherwise several priority rights shall be claimed according to the number of items stated.
• Time limit: If the applicant has applied for a patent for the same invention for the first time in accordance with the law with a WTO member or a country that has reciprocal recognition of priority with China (WTO member), and applies for a patent in China within 12 months from the date of its first foreign patent application (within 6 months for design) (subject to the filing date obtained in China), it should be noted that within 16 months of the earliest priority date (within 10 months for design), Submit the original documents certifying the acceptance of the application by the foreign country or WTO member government.

In the event of a discrepancy between the applicant and the applicant in the basic case on which the priority is claimed, in view of the fact that in practice, it is difficult for the successor of the rights and interests of the non-applicant to obtain the original priority certificate, so it is presumed that the applicant has the legal status to claim priority.

If the applicant fails to declare the claim of international priority at the time of application or the declaration is incomplete (there is an error or no statement on the first filing date and the receiving country or WTO member), and the applicant subsequently wishes to supplement the declaration or add a declaration of priority, he or she may apply for a reply to the priority claim within 16 months from the earliest priority date (10 months after the earliest priority date in the case of a design patent application) and at the same time handle the following matters:

• Pay the application fee of RMB 2,000 for recovering the priority claim.
• The filing date of the basic case for declaration of priority, the country or WTO member that received the application, and the number of the application.
• Submit the original document of priority certificate. In particular, it should be noted that the listing (including the payment of the application fee) must be completed within 16 months from the earliest priority date (10 months from the earliest priority date for a design patent application), and the application for reinstatement will not be accepted after the deadline.

However, if the application fee has been paid but the amount is insufficient, the applicant will be notified to make corrections within the time limit, and those who fail to make corrections within the time limit will not be accepted.

OK. If the invention contained in the scope of the patent application filed in China has been disclosed in the provisional application, the applicant may claim priority from the provisional application in the basic case.

If a patent application asserts priority (including applications asserting PCT, EPC, and OHIM), the basic priority case must be the first patent application filed in the territory of a WTO member or reciprocal country.

If there is a substantive examination of the applicant, the Bureau will conduct an examination of the patent requirements, and if the examination meets the requirements, a letter of approval will be issued, and the applicant will pay the annual fee and certificate fee for the first year, and the patent right will be granted from the date of publication. If the applicant fails to apply for a reply or amendment within the time limit, or if the reason for refusal cannot be overcome as a result of the application or amendment, a rejection decision will be issued and the patent will not be granted.

If the applicant does not apply for substantive examination, the Office will not conduct an examination of the patent requirements, and if the application for substantive examination is not filed within three years from the filing date, the application shall be deemed to be withdrawn.

After the examination of the application item by item, if it is determined that there are grounds for patent refusal, IPIM will issue a notice of reasons for reasons to facilitate the applicant to apply for replies, and to overcome such reasons for patent refusal, and to amend the application at the same time. Although the applicant has overcome all the notified reasons for patent rejection at the time of application or amendment, if a new cause for patent rejection arises due to the amendment, and the new cause is attributable to the applicant, a final notice may be issued to limit the amendment of the scope of the patent application, so as to achieve the effect of expeditious conclusion of the examination, and to make the notice of office action clear, reasonable and predictable.

In general, a person who manufactures such an article before the patent applicant has obtained the patent right is not liable for infringement. However, in the case of an application for a patent for invention and there are circumstances stipulated in Article 41 of the Patent Law (after the publication of the application, the inventor continues to be a commercial implementer after the notice is given written notice, and continues to be a commercial implementer before the publication knowing that it has been disclosed), the patentee may claim appropriate compensation after the announcement.

The right to claim arising from the infringement of the patent right shall be extinguished if it is not exercised within two years from the date on which the claimant becomes aware of the act and the person obligated to pay compensation; The same applies if it has been more than 10 years since the date of the act.

In the event of infringement of a patent right, the patentee may claim damages and may calculate the damages in respect of one of the following three paragraphs:

• In accordance with Article 216 of the Civil Code. However, if no evidentiary method can be provided to prove the damage, the patentee may reduce the difference between the benefits that the patentee would normally obtain from exploiting the patent right and the benefits obtained from the exploitation of the same patent right after deducting the damage.
• According to the benefits obtained by the infringer as a result of the infringement.
• The damages shall be calculated on the basis of the reasonable royalty received from the grant of exploitation of the invention patent. If the infringement is intentional, the court may, at the request of the victim, determine compensation above the amount of damages according to the circumstances of the infringement. However, it shall not exceed three times the amount of the proven damage.