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TRADEMARK AND PATENT RIGHTS BEFORE REVOCATION ARE STILL PROTECTED
Are trademark or patent rights still valid after a cancellation or revocation decision has been is-sued, but while administrative remedies are still being pursued? May the rights holder seek remedies against infringement of such right? Both the Copyright Act and the Patent Act are silent on these issues, and opinions in practice differ greatly.
Article 73 Paragraph 2 of the Patent Act provides that after the revocation of an invention patent is confirmed, the patent right is deemed never to have existed. Article 73 Paragraph 1 states that a revocation is confirmed either when no admin-istrative remedies against the decision are sought as provided for by the Act, or when a ruling to dismiss such remedies becomes irrevocable. Under Articles 108 and 129 of the Act, the pro-visions of Article 73 also apply to new utility model and new design patents. But the Act is silent as to the legal force of patent rights after a revocation decision has been rendered, but while administrative remedies are still in progress.
In a 2004 civil judgment, the Supreme Court stated that the granting of a patent is an admin-istrative disposition made by an administrative agency based on the powers vested in it, and that if a patent so granted has not been the subject of a confirmed revocation by the patent authority, then within the granted term, the patent remains valid and effective.
The current Trademark Act, which took effect on 28 November 2003, does not contain explicit provisions equivalent to those of Article 73 of the Patent Act regarding the validity of a trade-mark registration after a successful opposition or invalidation action, or after a revocation is con-firmed. However, the legislative intent for the last amendments to the Trademark Act stated that such matters should be handled pursuant to the Administrative Procedures Act.
It remains to be seen in real cases whether the courts will be guided by the Supreme Court's opinion on patent rights when they rule on the validity of trademark rights in like circum-stances.