英文摘要 |
The system for granting of patents exercises by granting an exclusive and preclusive right valid for a predetermined period to an inventor or creator for his invention or creation where the examination result reveals no reason to deny the patentability of the invention on condition that the inventor or creator reveals the invention or creation to the public. However, defective patents happen on occasion where the examiners in the authority make errors and/or mistakes when conducting the examination and determine whether a patent right should be granted, due to the examiners' personal limitation in knowledge or data collection. With such a possibility, a patent right granted to a patent applicant may not be absolutely valid, and may be revoked as a defective administrative decision by the Patent Office by authority or under a third party's request for cancellation where the authority to the third party later comes to be aware of that the patent application at the time it was filed has failed to satisfy the patent requirements. Such invalidation is thus executed to advocate the national purport of granting patent rights. Hence, the Patent Act supports post challenge against the validation of patent rights, i.e. “public inspection". After a patent right is granted, any party of interest may request for cancelling the patent right by law, or the responsible authority may revoke the patent right by authority so as to allow a patent examiner to make post-examination review. As provided in Article 73(2) of the Patent Act, the effect of an irrevocably-revoked invention patent right shall be deemed non-existent ab initio. As such, all legal relations based on the existence of a patent right appear to be revoked or extinguished concurrently with the revocation or extinguishment of the patent right. In this context, though it is a consequential outcome of following the “Principle of Administration by Law" that the administrative authority of a country ruled by law may make invalidation, cancelation or revocation against administrative decision, reconciliation with the “Principle of Legitimate Expectation" shall be also considered, so as to hold the equitableness of the system for granting of patents. |