Background

It has been notoriously known that Taiwan has reaped so many number 1s in the world and has produced so many critical high-tech parts or components therefor.  This fact should have become more familiar with any one who is in the high-tech field or used to read headline news in the world after September 21, 1999 earthquakes which badly damage the central part of Taiwan.

Taiwan having been known as an island of miracles possesses by herself a bizarre story.  Taiwan has historically been a territory of China except an interruption of fifty-year (ended in 1945) colony of Japan ruling Taiwan by high pressures to ever achieve a society having no theft, which still comes into the recall of Taiwanese having over 70 years old.  Racial consciousness generally has already eradicated such memory connection therewith although Japan still encumbers Taiwan with an enormous trade deficit every year till now.

In the age of Kang Hsi Emperor of Ching Dynasty of the Chinese history, he once wanted to give up Taiwan by immigrating into the inland all of its population then because she is apt to be attacked by typhoons and did not have much population.  All residents then expressed their wish to be here resided to have their new lives by which the Emperor decided to continue to take the reins over Taiwan.  Chiang Kai-Shek together with troops pledging their loyalty thereto retreated in 1949 from Chinese Mainland to Taiwan returned from Japan to China after World War II after defeated by the Communist army.  As a successor of Dr. Sun Yat-Sen, the National Father of Republic of China (ROC) which is the formal name of Taiwan, the former President Chiang having been a factual ruler of the entire China for almost 20 years and not reconciled to merely lead the small Taiwan never forgot to do all his possible to get the central ROC government back to Mainland China.  It should not be difficult for one to be persuaded even now that the primary purpose of Chiang’s striving for moving the central government from Taipei back to Peking was to make China prosperous and strong rather than to earn for himself the position of country leader which, however, would normally go to him if he succeeded. 

At one’s leisure here or upon meeting a foreign friend, an issue is often touched, i.e. do you believe Taiwan will go to independence or reunification with Mainland China which we generally call instead of the formal People’s Republic of China (PRC).  Generally speaking, there are three kinds of answers: firstly, ‘you will find, which will become easier year after year, Taiwan will become independent’ by older Taiwanese persons or ones who have some kind of relationship with victims in the past while initially ruled by Kuomintang, the party to which the past President Chiang belongs.  Secondly, ‘we would like to maintain the present state provided that we would be willing to be reunified into the great China if Mainland China finally becomes democratic’ by the major general public.  Thirdly, ‘we believe Mainland China will someday become democratic and powerful and that will be the correct timing for Taiwan to be reunified into the great China’ by older persons who came from Chinese Mainland in 1940s and their descendants.  We have no comments on these three answers.  Nevertheless, we would like to raise a phenomenon for interest: during the national celebration of October 1 in the past in Mainland China, there was the image of Mao Tse-Tung.  But there only is that of Sun Yat-Sen nowdays to be looked at with reverence by all people of PRC at Tien An Men Square.  Please be reminded that Dr. Sun Yat-Sen is the National Father of Taiwan, ROC.

Sometimes, ROC is understood as Republic of Casino, which means that people here like to gamble or venture, by which she is able to successfully afford hundreds of thousands of emigrants remitting to the emigrated countries myriad billions of US dollars for political safety purpose.  A fact which is normally taken as an example is that there are twenty two millions of population but there are more than 3 millions of accounts investing the stock market.  Although this is no longer unique in today’s world, it did make a kind of negative sense at some ten years ago to once earn for her a sarcastic name --- a greedy island.

To reap so many number 1s in the crucially competitive world market cannot be achieved simply because there is an island full of greedy people.  Industrious and hard-working public are basic supports for such achievements and make possible the above-mentioned emigrants who need not necessarily lead happy lives in countries they emigrate due to problems in accommodations in respect of living styles, professions and environments.  The northern part of Taiwan is a place densely populated with persons full of kinds of superb craftsmanships and thick deployed with diversified precious equipments, where is the important workshop for products to be supplied to extensively distributed world markets so that any kind of disasters including the earthquake dares not to destroy.   People here normally are ‘rich’ from the viewpoint of a certain aspect but are ‘poor’ at the same time since they normally unlimitedly work and are universally busy to become ‘rich.’  This might mean they lose their family lifetime and bear to have an unhealthy body.

The 921 earthquake again spotted Taiwan into the sight focus of the world suffering from shortage of supplies of important parts or the like and admirably exclaiming how it is possible for people in a society to behave that kind of solidarity to try to help their countrymen subjecting to the hardship brought forward by the powerful earthquake.   It is interesting to take notice of the fact that according to Mainland China, there are lumps of kinds of relief stocks, which are stopped by the Taiwanese Government from being sent to relieve the stricken areas, which is alleged beyond the imagination possibly made by PRC’s officials.  It is, perhaps, more interesting to get advised the fact that Mainland China always stops Taiwan from entering into any kind of international organizations, which is asserted beyond the imagination whatever probably tried by ROC’s officials.

Summary of Seeking Patent Protection

Protecting intellectual property rights including patents and trademarks has already been well-established indispensable measures to secure corporate or individual commercial interests.  Nevertheless, to exactly know where and when a patent application is to be filed is never less important than to realize how, why, whether, through which representing medium and by what reason that patent or trademark application is to be filed.  Although much information in these regards might be readily available at hand, a brief discussion will be given hereinafter:

1.   Where to file

The number of high-profit making technical fields is getting shrunk and reduced.  Budget control for a patent application is no longer strange.  A shrinkage of about 20% of the patent filing volume in 1998, compared to that in 1997, appears to have given the matter a cue.  Subjectively, deciding where to file involves in considerations where infringement will occur or curbing the infringement is necessary?  Objectively, considerations include budge, market evaluation, business reality, …etc.

2.   When to file

  This factor relates to corporate patent strategy or tactic and includes considerations whether it is important to secure an earlier filing date, whether it is critical to postpone to the largest extent the effective patent period, whether the competitor will soon successfully develop the similar technique, whether the subject matter has been maturely developed, whether diversified subject matters should be put in the same application and respectively prosecuted, whether the technique holder anticipate it will have been ready for marketing the subject matter once the patent is issued, whether there should be an inside department for urging that filing, …etc.  Please be reminded, however, it is never seldom to learn that two applicants respectively file almost the same subject matter in two applications at two successive days or even in the same day.

3.   How to file

  This factor relates to corporate psychology and includes considerations whether there should be an initial disclosure, who is responsible for preparation of the initial disclosure, whether there should be an inside counsel, how the IP budget should be shared, whether there should be an outside counsel for regularly interviewing the potential inventors, who is responsible for the foreign filing, i.e. through local firm in the home country or direct contact with local firms in the foreign countries sought patented by the in house counsel, …etc.   The most major problem might be how to compromise between obtaining the highest quality service in an efficient manner and paying the least service fee without future trouble.

4.   Why to file

  This factor involves in considerations whether the patent filing would represent a market force, whether the patent filing would be indicative of a bargaining power, whether the patent filing stands for a company asset, whether the patent filing is useful in terms of company reputation or image, whether the patent filing will inspire the member staff, whether the patent filing would enhance the company technical level, …etc.  It is not difficult to become known that through an infringement suit, it is extremely hard for a company to subsist.

5.   Whether to file

  This factor relates to considerations whether the patent filing is a proper form of protection, whether there exists another better alternative for protection, whether it is possible to keep the technique in secret, how long it is required for the competitor to conceive the competent technique, how much it will cost to effectively protect the technique, will the anticipated actual profit satisfactorily explain the cost for protection, does the product incorporating the technique represent an amazing achievement in the market, …etc.  It is easy to find that some companies own no patent but makes big money.  In such case, the issue might be how long these companies can continuously sustain their roles wonderfully?

6.   Through which representing medium to file

  Capitalism is a system, which a first major group of people are very fond of and a second major group of people hate very much.  Competition is a vehicle by which newcomers or small potatoes might succeed or experience a meteoric rise and big giants might collapse.  These are equally true to any one of industries.  There is a big joke but is the factual reality in Taiwan presently.  So far as the Taiwanese scale is concerned, if we define a firm having over 100 persons is a big firm, most foreign internationalized corporations entrust their Taiwanese IP works to big firms.  The big joke is that the most important reason for these foreign internationalized enterprises to entrust their works to big firms is that the person in charge of deciding which representing firm should be used normally will select the biggest firm because when the case comes across a mistake or a man-made trouble, that person can easily get relieved by asserting but that the case has been entrusted to the biggest firm, the mistake or trouble will be even larger.  It is uneasy to conclude in a few words whether or not a big firm is a wonderful representing medium here.   Nevertheless, we responsibly advise that it is true that large enterprises here not often entrust their IP works to a big firm at the present stage.

7.   By what reason to file

  By what reasons the technique should be filed as a patent or a utility model application?  By what reasons we should prejudicially take one or more of the above factors into serious consideration?  By what reasons we should exercise different thoughts or conduct different procedures for the same technique in different countries?

Detailed Analyses for Patent Protection in Taiwan

Opening Statement

It goes without saying that Taiwan is a relatively small market for consumer products.  Nevertheless, Taiwan is a relatively huge market for kinds of manufacturing equipments, high-technological, medium-level or low-end, by which she is able to earn her fame now she owns.

As a basic knowledge to the patent laws, a patent can protect for the patentee rights on manufacturing, selling and/or using the invention.  For better protection, a marvelous invention should theoretically be sought patented in territories where any one of manufacturing, selling and using acts occurs.  Before patent certificates can be obtained, however, lots of efforts and money must be paid.  Everywhere all over the world, every person faces the problem how his limited resources can be exploited to chase greatest possible potential interests in the daily life.  One of the most significant and difficult issues involving in properly deciding where and when a patent application is to be filed is to discern and tell whether a patent application should be filed in Taiwan.

Taiwan is not a party to the Paris Convention and is able to establish bilateral priority-claiming mechanisms with only 7 countries, i.e. Australia, France, Germany, Japan, Liechtenstein, Swiss and USA all over the world till now.  As a national of one of these 7 foreign countries, it is fine for it to secure such 12-month priority period if a home patent application for a specific invention has been filed.  Nevertheless, it comes more often for a foreign national to follow the PCT route to protect its invention.   As a result, there is a potential trap for the foreign national to seek patent protection in Taiwan for its invention.  Although within the foreseeable future, Taiwan will become a member of World Trade Organization (WTO), this potential trap will not disappear.  On the contrary, it might be worse since most of people in the world might be further apt to be bothered by such trap.

PCT has now covered over 100 members which explains why any person will consciously regard within 20 or 30 months he can still leisurely select legally where and when the national phase is to be entered after the PCT filing is duly effected.  As occasionally revealed by the potential applicants stamping their feet and accidentally disclosed by the utterly discomfited and sympathy-seducing potential applicants that Taiwan is not a member of PCT, they can no more protect their patent interests in Taiwan after their inventions have been publicly announced or the twelve months priority-claiming period has passed, even if the required normal PCT filing procedure has been regularly performed.  This issue will remain unsolved even after Taiwan has become a member of WTO.

As above-mentioned, Taiwan is a relatively huge manufacturing base in the world regardless of which fields in respect of high-tech, medium-level or low-end sides are considered, either of which is equally related to know-how or invention deserving patent-protected for a profit-making business to survive over the crucial market competition with the former having a greater probability in seeking patent protection.  As also known, a patent is to exclude others from manufacture, sale and use of the concerned invention.  It thus can be found that any territory which is a place involving in a great volume of manufacture, sale or use normally is a place worthy of patent protection in view of commercial benefits.  Certainly, it might be unnecessary for the applicant to file patent applications in all of territories involving in any kind of acts relating to manufacture, sale and/or use and/or importation if products for sale in various countries do come from the same single territory.   In such case, patent protection only in the single territory is enough in that the patentee will not lose any kind of interest all over the world if any kind of illegal manufacture is effectively curbed.  As a result, all products for sale are under supervision or license of the technical owner.  This simple example drops us a hint how much cost-effective it would be for us to correctly decide where we should conduct the patent filing and how much complex it might be for us to so decide.

In view of the above, we can often conclude that Taiwan is frequently a stronghold for patent protection.  This might be clear immediately upon deciding where a specific invention should be sought protection upon submitting or filing the first application.  Alternatively, it might become apparent only after one or two years’ evolution of the commercial environment or observation or evaluation that Taiwan is a place where patent protection should be sought for sure.  It is sometimes hard to exactly or correctly compare, examine and determine variables or factors involved in a matter at a specific opportunity, especially at a time before the matter begins to happen.  Nevertheless, through above brief analyses, for a foreign national having potential interests in seeking patent protection outside of it home country, it seems that its patent-deploying strategical or psychological deciding procedures might include as follows:

1.       Upon submitting an invention for filing a patent application, it decides considerations including where and when that invention should be patented;

2.       If a priority-claimable foreign application is filed, within 12 months from its filing date or prior to the public announcement after the 12-month period, foreign applications possibly including the Taiwanese one should be filed;

3.       If no priority-claimable foreign application but a PCT application is duly filed, especial care must be exercised.  This is because Taiwan is not a party to the Paris Convention and thus no priority can be secured therefrom so that a separate Taiwanese application should be considered at the time the PCT application is filed;

4.       If no Taiwanese application is filed upon filing the PCT application, special attention must be paid in order to file in time the Taiwanese application before the public announcement of the subject matter or the 18-month prior publication time limit of the PCT application;

5.       Generally speaking, it is suggestible to file together with the PCT application a separate Taiwanese application due to factors and facts either above-described or to be stated hereon.   Once a Taiwanese application has been filed, it is very cheap, normally in the range of about USD$1,200, to file a corresponding Mainland Chinese application since their official complicate and simplified Chinese characters can be easily transferred into each other by a software.  It appears to be most desirable to follow this suggestion to file together with the PCT application a separate Taiwanese application, which ensures the patent protection map unassailable and invulnerable and easily frees the applicant or the patent attorney from the possibility or risk of overlooking the observation of the time period for patent-related actions in Taiwan.  By so doing, it is also advisable to file at the same time Mainland Chinese application at the above-mentioned low cost in that it takes a relatively long time, i.e. about 3 years, to seek patented a Chinese patent application;

6.       The above suggestion is advisable not only because of reasons having been mentioned but also due to the human potential inertia that one tends to either decide only at the very beginning or will not decide until the last minute.  Specifically, if a PCT route is followed, one will inherently not decide where the invention should be finally entered into national phases until an impending time for the 20-month (if no preliminary substantive examination is requested) or 30-month (if the preliminary examination has been requested) period.  At that impending time, however, it is no more possible for him to effectively file a Taiwanese patent application.  Theoretically, although there exists a critical time, i.e. 18-month earlier publication, for filing the Taiwanese patent application, it is generally hard for relevant persons to carefully and thoroughly study the propriety and necessity of filing a Taiwanese application since at that timing, the territory involved in considerations only relates to Taiwan.  In view of the fast pace in the society nowadays, it is inefficient and troublesome for the IP and other corporate staffs and the patent attorney sometimes to hold an effective meeting for that effect.  It is therefore suggested again if the PCT route is followed, it is advisable to file at the same time a Taiwanese patent application, and Mainland Chinese patent application as well for best patent protection deployment in a proper worldwide manner.

Legal Analysis of Taiwan Status

Part I --- Paris Convention

Article 2(1) of the Paris Convention provides ‘nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention.  Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.’  Since Taiwan is not a ‘country’ of the Union, nationals of ROC here cannot claim priority from other countries under the Convention according to its Article 4(A)(1) providing ‘any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.’

Taiwan (ROC) is often not a ‘country’ under the definition of international treaty.  This is not due to she is unwilling to enter thereinto but because she is frequently frustrated by Mainland China (PRC) to so attempt.  In the past, ROC claims she has the sovereignty over Chinese Mainland which is temporarily ruled by the rebellious PRC asserting she has the sovereignty over Taiwan since the legal status of ROC has been superseded thereby which has been recognized by the majority of members of the international society.  Since 1992, Taiwan conceded PRC has the full legal rights to rule Chinese Mainland for complying with the world tendency of replacing confrontation by negotiation and for restructuring the reunification between two banks of Taiwan Strait, which, however, does not work much so far as the relationship between the two banks is concerned. 

Since Taiwan is not a member of Paris Convention, the following phenomena are encountered:

1.   Her nationals cannot enjoy the rights conferred by Article 4(A)(1) to claim priority for their foreign filings from Taiwanese applications and vice versa.  To safeguard her dignity or under the thoughts of an eye for an eye and a tooth for a tooth, Article 24(1) of ROC Patent Law stipulates that ‘an applicant having first duly filed for the same invention a patent application in a foreign country mutually recognizing priority claim with the Republic of China, and filing therefor a corresponding patent application in this country within twelve months of the day following the date he first filed patent application may enjoy the priority’ by which only nationals of the above-mentioned 7 countries can claim their foreign home priority for their Taiwanese applications (details of which please refer to No. 1 Newsletter of this firm);

2.   Although her national cannot claim priority from the home (Taiwanese) application, most countries in the world with the exception of Japan and Korea do allow her national to claim priority from an application of A foreign country for the application in B foreign country.  It is unclear whether the standpoint of the international society so taken is because:

A)   Foreign countries (or more accurately, their examiners) would like to show mutual respects thereby?

B)    Foreign countries desire to show some justice for Taiwanese nationals as a result of their well performance in the world market or to console the mind of Taiwanese nationals due to their having no “country”?

C)   Foreign countries simply take it for granted and have not yet been bothered to consider it since most applications they handle do not present such a issue? or

D)   Foreign countries are happy to disregard this issue since it raises no problem till now?

3.   It is unknown whether a specific foreign country will retaliate if she knows Taiwan does not allow her nationals to claim priority from an application filed in a country being one of the above-mentioned 7 countries if that specific foreign country is not one of those 7 countries?

4.   Out of the depth of misfortune, there comes the bliss.  If we file a patent application in Taiwan on March 31, 1998, we can legally file until March 31, 1999 (i.e. the first priority year counting from March 31, 1998 to March 31, 1999) a US patent application, from or based upon which we not seldom represent the client to file and claim priority from the US ‘first’ filing for an application in another foreign country until March 31, 2000 (i.e. the second priority year counting from March 31, 1999 to March 31, 2000) if the necessity appears.  Till now, no problem is presented.  Article 4(C)(2) of Paris Convention stipulates “these periods shall start from the date of filing of the first application: the day of filing shall not be included in the period,” by which it is universally conceived that the basic application must be the first application all over the world. 

There are voices that our representation for the client in the above way will run a risk to a not small extent.  We never intentionally encourage the client to do so.  On the contrary, we normally persuade the client to conduct foreign filings as earlier as possible.  If a delayed foreign filing is necessary, we generally convince the client to simultaneously effectuate a US filing upon submitting the Taiwanese filing in order that even if it is necessary to use the US application as the priority-claimed one, the client had better complete all foreign filings within one year from the Taiwanese filing rather than the US filing. 

Nevertheless, ideality is never equivalent to the reality.  When the situation becomes necessary, we freely connive at being entrusted by the client to represent therefor in the above way.  Our rationale to that effect is that since Taiwan is not a ‘country’ under the Paris Convention, the patent filing in such ‘non-existent country’ can never be qualified as an application under the Convention.  Accordingly, all over the world, only Taiwanese nationals have the rights to successfully claim priority within two years after the first filing.  Although the Taiwanese filing per se is not so important in the world patent folio, it does bring forth some advantages for the applicant.  For example, the examination result of the Taiwanese filing sometimes gives a good reference in deciding whether foreign filings should be conducted.   As further an advantage, within the first priority year (and the second priority year), the applicant can normally improve or further evaluate its invention and sometimes complete its preparation and deployment about the promotion or distribution of products embodying its invention.  Accordingly, it might be advisable for all internationalized companies all over the world to file their ‘real’ first patent applications in Taiwan to arrive at the effects above-described.

5.   In order to enable a foreign country and Taiwan to enjoy mutual priority claim, it appears there are two possible alternatives as follows:

A)    Article 3 of Paris Convention provides that “nationals of countries outside the Union who are domiciled or who have real and effective industrial or commercial establishments in the territory of one of the countries of the Union shall be treated in the same manner as nationals of the countries of the Union.”  This article might help explain the righteousness shown by the international society set forth in above item 2.  We have an internationally acceptable appeal here that bringing a territory into is always better than expelling it from application of international treaties or norms.  We have queer but justifying reasoning for such appeal as follows:

a)    There are three ‘countries’ in Article 3 of Paris Convention.  Although it is usual or logical to constantly construe the same term, especially in the same article, it is never impossible for us to interpret differently the same term in the same article, especially when the usage of the relevant word is not exactly the same as the present case is.  Specifically, the three ‘countries’ include two in ‘nationals of countries’ and one in ‘one of the countries.’  One cannot deny that these three phrases are differently directed.  It would appear that we can legally construe that the first phrase emphasizes ‘nationals’ and the focal point of the latter two phrases is ‘countries.’  Consequently, since Taiwanese nationals are ‘nationals of countries outside of Union,’ which will become even more correct in consideration of the fact that she is not a country under the Paris Convention, Taiwanese nationals can invoke the application of Article 3 of this Convention in that both ROC and PRC always allege that Taiwan is a part of China so that all Taiwanese nationals are persons who are domiciled or who have real and effective industrial or commercial establishments in the territory of one of the countries of the Union, i.e. PRC, to which although ROC government might not agree;

b)   It would be more clear through the above reasoning that any foreign country shall dispense with any possible consciousness or intention to retaliate as described in above Item 3 since Taiwanese nationals do have a sound base to enjoy some kind of rights prescribed according to Paris Convention.  Although Article 24(1) of the ROC Patent Law does not appear so friendly to foreign countries being not the mentioned 7 countries, its sole purpose is to urge foreign countries desiring to enjoy mutual priority claim with Taiwan to enter into a bilateral priority agreement therewith since Taiwan is prepared to conclude an agreement with these foreign countries at all times.  It is a good virtue and sometimes will get wonderful feedback (e.g. we provide billions of USD for international aids) to try to be kind somehow to Taiwan being an international orphan.  In addition, we will try our best efforts to press our government to be more friendly and reasonable;

c)    Certainly, it might be weak to try to base full range of priority claim to the extent as applicable to a party member of the Union only on the above reasoning.  Nevertheless, it might be not so ridiculous for a foreign country to construe the article of the Convention in the above-mentioned manner to which we highly look up.

B)    Before a foreign country willing to enable her nationals to mutually claim priority with Taiwan can freely construe the convention articles in the above way somehow, it is advisable and appears suggestible to be simple and straight for that foreign country to be preparatory to sign a priority-claim agreement with Taiwan for that effect.

Part II --- PCT

Article 9(1) of Patent Cooperation Treaty stipulates that ‘any resident or national of a Contracting State may file an international application.’  It would appear that without exercising a further word game which we would like to play no more, it is impossible for Taiwanese nationals to legally file an international application.  In order to cope with this problem, the applicant here normally assigns one percent of its rights to a national of a contracting state of PCT.  It is generally conceived that the law is a matter reflecting morality to the least extent.  According to this article and the current practice, we, as Taiwanese nationals, cannot straightforward file by ourselves an international application but we can bravely, frankly and legally design the above-mentioned assignment to comply with the provisions of PCT.  It would thus appear the treaty or the law is not to stretch the justice but to encourage people on earth to learn hard to pretend, disguise and cheat their righteous hearts and the world to struggle for existence.  Through rich documentation left thousands of years ago, we can prove that Confucius, Lao-tse and Sakyamuni will never so consent although we cannot completely document to present at the present stage that Jesus and Mohammed will not consent either.  It is a shame for Taiwanese nationals to so behave themselves for seeking justice before PCT.  Nevertheless, it is equally a shame for the international society to construct such kind of civilized system to trap Taiwanese nationals into such dilemma or mishap.

If the international society can introspect to find improper to treat Taiwan so special, the above dilemma might be solved by resorting to the application of Article 9(2) of PCT providing ‘the assembly may decide to allow the residents and the nationals of any country party to the Paris Convention for the Protection of Industrial Property which is not party to this Treaty to file international applications.’  Through the invocation of the split meanings of ‘countries’ and ‘nationals of countries’ and their reasoning set out in Item 5A)a) in Part I, although we cannot loudly claim Taiwan is a party to PCT, we should be permitted to stoop to humbly declare since we are ‘nationals’ of ‘a kind of country’, we still can file international applications even if we are nationals of an ‘inexistent country’ not a party to PCT. 

It appears to us it is a great paradox for the international society to take the position on the one hand that ROC is not a country by which the direct priority claim by her nationals is always outright rejected according to the provision of the local patent law, reflecting the corresponding article of Paris Convention or PCT.  While on the other hand, the international society did appear to potentially take Taiwan as ‘a kind of country.’  In this July, when President Lee of Taiwan mentioned in his answers to questions posed by a German broadcasting radio station that the relationship between Taiwan and Mainland China was similar to two states in one country, there were aroused ripples of international commotion.  The situation becomes even worse in Chinese versions.  This is because state and country are not easy to tell them apart in Chinese words.  According to Taiwan official translations, the English phrase ‘two states in one country’ was translated into a Chinese phrase, which is equivalent to ‘two countries in one people’ when translated back to English, which certainly outrages PRC to appear the Taiwan Strait Crisis on the international stage. 

It is our insight by which it appears that we can reprimand the international society that if Taiwan is not any kind of country, why the international society needs to worry or takes so serious about the answer made by President Lee.  Since the international society and the current civilization primarily led by western countries seem to be incapable of effectively solving those and other international disputes or discrepancies, we decided to step out our own way.

In mid-August when there was a smothery atmosphere between two banks of Taiwan Strait, we wrote a letter facsimiled to President Lee of Taiwan and President Chiang of Mainland China, detailing why President Lee should keep silent and why President Chiang should placate the liberation army in order to urge an early negotiation therebetween since there still is a long way for China, even having been reunified, to go really revived to duly uphold justice for ‘nationals of any kind of country’ in the world in the eastern manner.  Perhaps merely by good luck, the smothery atmosphere happened to begin to die away a few days thereafter.

Part III --- World Trade Organization (WTO)

Beginning from the military rout in 1949, resulting in that the central ROC government headed by Kuomintung was retreated from Chinese mainland to Taiwan, ROC has experienced kinds of losses in the international stage, especially after PRC successfully superseded ROC to take the seat in United Nations in 1971.  PRC always stops ROC from participating in any kind of international activity to summon ROC to surrender under its designed frame of ‘two systems in one country,’ in which ROC never agrees to step.  As a compare to the past, it has been a masterstroke and a great progress to establish such an international organization to co-join therein Mainland China, Hong Kong and Taiwan.

The preface of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) includes ‘members, desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, … emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures.’  Article 27 of TRIPs includes the clause ‘subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place to invention.’  Although Taiwan can get satisfied to some extent through participation in WTO, our inherent born rights in extensively claiming priority under Paris Convention and filing an international application remain disappeared.  Will the international society resolve these problems for us?

Some western works, e.g. the movie ‘Jurassic Park’, move all animals named human being very much.  There is a simple sentence representative of a truth in that movie --- ‘life will find its way.’   We will find our way to the above effects.

Claims We Want to Declare and You Might Agree

There still is a question to be solved --- is it possible to enforce a patent in Taiwan?  It is true that Taiwan had ever won a label, ‘a country of pirates’ in the past.  It is even more true that one will never encounter an unreasonable difficulty in enforcing a patent right nowadays, through efforts of Taiwan government in the past.  It might be advisable for the one having any unpleasant experience to try this firm to clarify the trouble.  Accordingly, we summarize our claims as follows:

1.   Upon considering where an invention should be filed, Taiwan should be included in the list for sure;

2.   If a priority-claimable foreign application is filed, within 12 months from its filing date or prior to the public announcement after the 12-month period, a deliberated Taiwanese application should be filed;

3.   If no priority-claimable foreign application but a PCT application is duly filed, a separate Taiwanese application should be considered upon filing the PCT application;

4.   If no Taiwanese application is filed upon filing the PCT application, special attention must be paid in order to file in time the Taiwanese application before the public announcement of the subject matter or the 18-month prior publication time limit of the PCT application;

5.   Upon filing the Taiwanese application, let your thoughts stay for a while before the fact that normally in the range of about USD$1,200, a corresponding Mainland Chinese application can be completed;

6.   It is reminded again if the PCT route is followed, it is advisable to file at the same time a Taiwanese patent application and a Mainland Chinese patent application for best patent protection deployment in a proper worldwide manner;

7.   It is and is not a joke that you should consider to effectuate the ‘real’ first patent filing in Taiwan among countries all over the world.

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Deep & Far Newsletter is intended to be informative and of some kind of enlightenment.  Unless having been fully developed, any views or opinions, expressed or implied, are unnecessarily those of Deep & Far, or its attorneys or clients.