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AGENT'S NEGLIGENCE IN TRADEMARK AND PATENT APPLICATIONS
According to a 2005 judgment of the Taipei High Administrative Court, negligence on the part of an agent in patent-related matters is to be regarded as negligence on the part of the applicant. Such negligence cannot be considered to be a reason not attributable to the applicant, and therefore the applicant may not petition for reinstatement under Article 17 Paragraph 2 of the Patent Act.
The Taipei High Administrative Court stated that if, due to an operational oversight, an agent handling a patent application misses the deadline for paying the patent certificate fee and first year's annuity, with the legal consequence that the patent right becomes nonexistent ab initio, then within the scope of the authority granted to the agent any negligence of the agent is to be regarded as the negligence of the applicant itself. In the case before the court, by the applicant's own admission the statutory time limit for payment of fees was exceeded due to the negligence of the applicant's agent. This should be deemed as the applicant's own failure to pay the certificate fee within the statutory time limit, with the effect that the patent right was nonexistent ab initio. It was not due to natural disaster or reasons not attributable to applicant, and accordingly there was no basis for allowing the applicant to pay the unpaid fees and for reinstating the status quo ante under Article 17 Paragraph 2 of the Patent Act.
The above view of the court should also be applicable to trademark application cases.