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Taiwan: Extensively Amended Patent Act Becomes Effective

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(Dec 31, 2012) On January 1, 2013, the Patent Act of the Republic of China (on Taiwan), which was promulgated on December 21, 2011, will come into force. The Taiwan Intellectual Property Office (TIPO) was quoted as saying that the revised law "will be more compliant with international standards, with more expansive protection for design patents and increased flexibility in application procedures." (Taiwan's Amended Patent Act Set to Take Effect, TAIWAN TODAY (Dec. 13, 2012).)

The new Act has 159 articles, of which 108 are revised provisions. Fifteen of the former 2010 law's 138 articles have been deleted, and 36 new articles were added. In addition, eight related regulations and five patent examination standards were adjusted to bring them into conformity with the amended law. (Id.; Patent Act 2011 [in Chinese and in English translation], Taiwan Intellectual Property Office website (last visited Dec. 26, 2012); Patent Act, Aug. 25, 2010 [in Chinese], Law & Regulations Database of the Republic of China website.) Some highlights of the amended Act are as follows.

Applications:

  • permissibility of applying for a patent for an invention disclosed in a publication, if the submission is made within six months of the disclosure;
  • extension of grace period (before filing an application) to cover novelty and inventive step requirements for inventions and utility models (in addition to that accorded to the creativeness requirement for designs);
  • limitability of applications in foreign languages to Arabic, English, French, German, Japanese, Korean, Portuguese, Russian, and Spanish, and when the application is filed with foreign-language specifications, claim(s), and/or drawings, no amendment of such documents will be permitted; and
  • removal of the inventor assignment requirement for patent applications filed on or after January 1, 2013.

Examination:

  • removal of the time limit for an applicant to request modifications to the invention description, claims, or drawing; and
  • addition of provisions on final notification and on correction of mistranslations.

Design patents:

  • expansion of scope of subject matter accorded design patent protection, to cover partial designs, computer-generated icons and graphic user interfaces, generative designs, and sets of related items; and
  • abolition of the "associated design patent" regime.

Biological material:

  • combination of the certificate of deposit and the viability test report into one document;
  • extension of deadline for submission of the certifying document, to within four months (vs. formerly three) from the filing date;
  • removal of the requirement to provide information about the deposit in the application form; and
  • inclusion of new provision on the reciprocal recognition of deposits made by foreign nationals.

Invalidation actions:

  • abolition of ex officio invalidation by the TIPO; invalidation proceedings to be handled by the "Specific Patent Agency" instead;
  • permissibility of filing an invalidation action against part of the claims covered by the patent (as opposed to the whole patent) when a patent includes two or more claims; and
  • requirement that the invalidation action filer submit a declaration of invalidation to determine the action's scope, and the claims set forth in the declaration may not be changed or added to after the declaration is filed.

Infringement:

  • requirement of intent or negligence in the infringement of a patent before damages may be claimed;
  • internationally accepted doctrine of patent exhaustion adopted in the related regulations.

Compulsory licensing:

  • applicability in response to national emergency or other circumstances of extreme urgency, where the patented invention is exploited non-commercially to enhance the public interest, etc.; and
  • addition of new provisions on compulsory licensing in order to help countries with insufficient or no manufacturing capabilities in the pharmaceutical sector to obtain pharmaceuticals needed to treat HIV/AIDS, tuberculosis, malaria, and other epidemics.

(Taiwan's Amended Patent Act Set to Take Effect, supra; Essence of the New Taiwan Patent Law -- Key Issues Only! to Come into Force on 1 January 2013, Taiwan International Patent & Law Office (Dec. 18, 2012), http://www.tiplo.com.tw/pdf/1e-PatentLaw2013.pdf.

In addition, although the grounds for extinguishment of a patent under the amended Act are essentially unchanged from the previous Act, the amended Act includes a new provision with reference to remedies for extinguishment of the patent right due to a patentee's failure to pay a patent annuity within the stipulated time limit. Article 70, paragraph 2, of the amended Act adds a new monetary charge and a publication requirement, stipulating:

Where the applicant unintentionally failed to pay a patent annuity within the late payment time set forth in Paragraph 1 of Article 94 [six months, versus 30 days in the 2010 Act, from the original due date, but with a "specified percentage addition" not set forth in the 2010 Act], the patentee may apply for reinstatement of the patent rights within one year from the due date for effecting the payment by paying triple the amount originally due, and the Specific Patent Agency shall publish with respect to the above. (Patent Act 2011, supra; Patent Act, Aug. 25, 2010, supra.)

Adjustment of Fees

The government has also adjusted patent-related fees, to be applied as of January 1, 2013. The basic re-examination request fee (for inventions) will be NT$7,000 (about US$241), with an additional fee of NT$800 (about US$28) imposed for each claim in excess of ten claims. Previously, there was an NT$8,000 charge regardless of the number of claims. The technical appraisal request fee (for utility models) will be NT$5,000, with an additional fee of NT$600 charged for each claim in excess of ten claims. The previous fee was a fixed NT$5,000 charge. (Notice on Vital Taiwan Patent Law Changes as of January 1, 2013!, Taiwan International Patent & Law Office (Dec. 18, 2012).)

The fees for filing a petition for an invalidation action (for inventions and utility models) is a basic NT$5,000, plus NT$800 for each claim to be invalidated. Formerly, there was a fixed fee of NT$10,000 for invalidation petitions related to inventions and of NT$9,000 for those regarding utility models. (Id.)

Taiwan Patent Statistics

In the first quarter of 2012, TIPO received 19,397 patent filings, a 2.6% increase over the first quarter of 2011 (18,905), with 11,595 applications filed by ROC nationals and 7,802 filings by foreigners (for the latter, more than a 5% increase over the previous year). Among the filings, invention patent applications totaled 11,596, of which 4,859 were filed by ROC nationals and 6,737 by foreigners. Japan ranked first among the top five invention patent filing foreign countries, as it has done for several years in a row. The United States continues to rank second, but the number of filings has slightly decreased for the past five years. In the first quarter of 2012, mainland China filed 284 patents in Taiwan, "a significant growth of 144.83% over the same period of last year." (Taiwan Patent & Trademark Law Office, IPR Trends Q1 2012: Patent and Trademark Statistics, TAIWAN IP NEWS (May 11, 2012).)

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Albania: Constitutional Amendment on Parliamentary Immunity Passed

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(Dec 31, 2012) On September 18, 2012, the Assembly of Albania (the parliament) approved constitutional amendments that provide for automatic lifting of parliamentary immunity from criminal prosecution for legislators, judges, and other high-level government officials in corruption cases. (Press Release, Organization for Security and Co-Operation in Europe (OSCE), Head of OSCE Presence Welcomes Restriction of MPs' and Judges' Immunities in Albania (Sept. 18, 2012).) The amendment was recommended by the European Union delegation to Albania and was supported by ruling and opposition parties in the Parliament. (Albania Curbs Immunity for Law Makers and Officials, EUBUSINESS (Sept. 19, 2012).)

The amendment was also promoted by Albania's Prosecutor General, who has frequently called for its adoption, in particular to strengthen the fight against corruption in the judiciary. Speaking before the Parliament in July 2012, she stated "[t]here is a sort of corporatism between judges to protect each other and prosecutors" when they are indicted for corruption, and "[t]hey don't view the case as an indictment against a judge or prosecutor but rather as an indictment against a friend or colleague." (Besar Likmeta, Albania Courts Lenient Towards Corrupt Judges, BALKAN INSIGHT (July 4, 2012).)

The provisions implementing the amendments are to be introduced in the Code of Criminal Procedure. The changes will allow for the investigation and criminal prosecution of members of the legislature, judges, and members of the Council of Ministers (national government) without prior authorization issued by the Assembly as required under current law. (European Commission, Commission Staff Working Document: Albania 2012 Progress Report, at 12 (Oct. 10, 2012), European Commission website.)

As reported by news sources, "the changes will make it easier for prosecutors to investigate officials on corruption charges." (Albania Curbs Immunity for Law Makers and Officials, supra.) Corruption is said to be widespread within the judiciary, where "[p]oor working conditions, a lack of adequate safety arrangements for courts and judges and generally low remuneration, plus the absence of adequate controls and the opaque system of appointments, promotions and transfers, continue to be key risk factors for corruption … ." (European Commission, supra.)

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Russian Federation: Mandatory Russian Language Test for Labor Migrants

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(Dec 31, 2012) Federal Law No. 185 on Amendments to Federal Laws on the Status of Foreigners and on Education entered into force on December 1, 2012. (ROSSIISKAIA GAZETA No. 262 (Nov. 14, 2012) [official publication, in Russian].)

Under the amendments, labor migrants who come to Russia from abroad will not be able to obtain work permits without proving their knowledge of the Russian language. Passage of a special test and the receipt of a certificate will serve as proof of such knowledge. (Id.) According to commentaries on the amendments issued by the Federal Migration Service of the Russian Federation, only those who intend to work in the fields of customer relations, communal and housing services, and retail operations will be required to pass the test. (Migrants' Russian Skills Will Be Tested as of December [in Russian], NOVAYA GAZETA (Dec. 3, 2012).) Other official documents can be used as a proof of Russian language ability if they are recognized in Russia. For example, a diploma issued by a university in the former Soviet Union will be accepted, because at that time all Soviet republic college-level education was conducted in Russian. (Id.)

The test was developed, the commentaries state, by taking into account the specific, typical abilities of migrants. It is relatively short and simple, consisting of 25 lexical and grammar questions; and the administration time is up to 90 minutes. By comparison, the citizenship exam includes 75 language questions administered during a time period of up to three hours. (Id.) Three new test-taking facilities were opened in Moscow to offer the exam. The test can be taken in all the constituent components of the Russian Federation. (Id.)

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Moldova: New Rules for Child Adoption Proposed

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(Dec 31, 2012) On November 1, 2012, the Parliament of Moldova passed at the first reading amendments to the legislation governing adoption of children. (Tatiana Gurzu, Parliament Changes Child Adoption Procedure in Moldova [in Russian], KOMMERSANT.MD (Nov.1, 2012).) As described by Moldova's Minister of Social Protection, Labor, and Family Affairs, the bill is aimed at simplifying adoption procedures and reducing the time limit for document processing, especially when foreign individuals intend to adopt Moldovan children. The bill also seeks to address problems related to the separation of siblings in the course of adoption. (Ana Rimbu, Adoption Procedure for Moldovan Resident Children Will Be Changed [in Russian], PUBLIKA.MD (Aug. 2, 2012).)

The bill divides children who are available for adoption into two groups, with a different legal regime for each. One is for children without specific needs, i.e., healthy children under seven years of age; the other is for children with specific needs. The second group includes children with limited abilities, including those with developmental disabilities or those who are at enhanced risk for further developmental problems, children who are seven years of age or older, and children who have one or several seven-year-old or older siblings. (Government of the Republic of Moldova, Decree No. 568 of August 3, 2012, on Amendments to Selected Legislative Acts, Parliament of Moldova website.)

The bill also changes the procedure for adoption of Moldovan children by foreigners. In order to adopt a Moldovan child, a foreign citizen must file a petition through an accredited international child adoption organization. (Id.) Issues related to accreditation of such foreign organizations are addressed in the bill. Each organization will be required to undergo annual certification by Moldovan authorities. Certification can be extended for another year upon the organization's submission of an activity report. (Id.)

The court in the locality where an orphan is residing will issue the adoption order. If a child is ten years old or older, his/her consent must be obtained in preparation for the adoption case hearing. In addition, the child must consent to a possible change of his or her given name and last name that might occur after the adoption. (Id.) Decisions of the central adoption authority (which is an agency that will be designated later by the government) on the choice of parents for an adopted child will have to be confirmed by a specially created Consultation Council. Additionally, the Council will have the power to rule on the reasonableness of separation of siblings. (Id.)

Prepared by Virab Khachatryan, Law Library contract Foreign Law Specialist, under the supervision of Peter Roudik, Director of Legal Research.

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Israel: Assistance to Battered Women

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(Dec 31, 2012) On November 5, 2012, the Knesset (Israel's parliament) passed the Welfare Services (Adaptation Grant for Women Who Have Stayed in a Shelter for Battered Women) Law, 5773-2012. The Law provides for an adaptation grant for any woman who has stayed for at least 60 days in a shelter for battered women, to assist her with adapting to new circumstances.

The Law requires that the grant be issued in accordance with a treatment-rehabilitation plan set for the woman for the period following her leaving the shelter, provided that at the time of her exit she does not return to her prior permanent place of residence.

The Law also requires that any request for an adaptation grant be submitted to the Ministry of Welfare and Social Services. It further provides that the amount of the grant will be NIS8,000 (about US$2,143), in addition to NIS1,000 (about US$268) for each child, for up to two children. (Id.) These amounts are adjusted each year in accordance with the increase in the consumer price index, as published by the Central Bureau of Statistics.

According to explanatory notes for the draft bill for the Law, the grant is designed to assist battered women whose stay at the shelter may affect their lifestyle and their economic conditions, as a result of their having to either leave or reduce the scope of their employment. The exit from a shelter for battered women, according to the draft bill's explanatory notes, raises both emotional and financial difficulties that justify financial assistance for adaptation. (Welfare Services (Adjustment Grant for Women Who Have Stayed in a Shelter for Battered Women) Law, 5773-2012, Sefer HaHukim [Book of Laws, official gazette] No. 2387 p. 34 (5773-2012), Knesset website, & the related bill (both in Hebrew & both last visited Dec. 28, 2012).)

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