| 英文摘要 |
Article 99, Paragraph 1 of the Patent Act provides, “If the product made by the process patent has never been seen in this or foreign country before the patent application for such process was filed, a product made by others is presumed to be made by such patented pro-cess.” This provision relates to the reversal of burden of proof for a process patent, but does not clarify whether “before the patent appli-cation for the process was filed” covers the date a patentee claims for a right of priority. Taiwan Intellectual Property Court Civil Judgment (99) Min Zhuan Su Zi No. 159 (2010) may resolve this issue and im-plies that the literal meaning of the timing term in Article 99, Paragraph 1 for determining the novelty of “the product made by the process pa-tent” may be changed from the “actual filing date” to “priority date” if the patent enjoys the right of priority. But, the court did not interpret the statute directly. So, this article is intended to provide legal argu-ments to support the court. According to the interpretation of Article 34 of the TRIPS Agreement, this article supports the reasonableness of the court’s implication that can improve the law of a right of priority. Moreover, this article proves that the scope of “the product made by the process patent” should exclude the product made by the process patent owner, or at least the product disclosed publicly by the patentee during the grace period. This view is supported by the interpretation of Article 34 of the TRIPS Agreement, legislative history of Article 99 of the Patent Act, and the consideration of the internal harmonization of the Patent Act. |
