| 英文摘要 |
Since July, 2004, any patent application for utility model has only undergone formality examination and not been reviewed substantively for its patentability. The system of formality examination for each utility model patent is supplemented by requesting the patentee thereof to present corresponding technical reports under the Patent Act. This article, based upon Intellectual Property Court 105 Min Zhuang Shang Zi No.30 Civil Judgment and the related cases, asserts that Intellectual Property Court shall adjudicate the cases related to a patentee’s exercising its utility model patent strictly under Article 116 and 117 of the Patent Act to strengthen the importance of a technical report in the exercise of each utility model patent and to prevent the abuse thereof.
In the event that an utility model patent holder does not present the corresponding technical report, or supporting material whose objectivity is equivalent to or higher than the technical report, such as the first instance judgment confirming the validity of and infringement on the utility model patent, the patentee shall not be considered having legitimate belief in the patentability thereof. Since an utility model patent holder’s making a warning is an act of exercising the utility model patent, the liability for such holder’s violating Article 116 of the Patent Act shall be determined in accordance with Article 117 thereof. It is suggested that Taiwan Fair Trade Commission amend Article 3.1.3 and 3.1.4 of “Fair Trade Commission Disposal Directions (Guidelines) on Warning Letters issued by Enterprises Arguing Copyright, Trademark, or Patent Infringement” to exclude utility model patents, so that holders thereof could not evade the restrictions imposed by Article 116 and 117 of the Patent Act by obtaining infringement analysis reports from professional institutions and issuing warning letters with simultaneous or prior notices of preventing infringement, or issuing warning letters with disclosure of required information and simultaneous or prior notices of preventing infringement. |
