Newsletter
CAN NOTICE BE GIVEN TO STOP INFRINGEMENT OF A PROVISIONALLY GRANTED PATENT?
Article 50 Paragraph 1 of the Patent Law pro-vides that patent rights become provisionally effective when the approval for application of a patent is announced. But the law does not ex-plicitly define what effect a provisionally granted patent has, and in particular whether infringe-ment of a provisionally granted patent constitutes a tort, and what remedies are available. In a 1999 criminal judgment, the Taichung District Court held, mainly on the grounds that rights under a provisionally granted patent are unconfirmed, that an act infringing such an unconfirmed right did not constitute an offence under the penal clauses of the Patent Law. But in a 1999 inter-pretation of the law, the Intellectual Property Office stated that Article 88 Paragraph 1 gives patentees the right to prevent threatened in-fringements, and that, therefore, once a patent has been provisionally granted, the patentee may issue written notice in accordance with the pro-visions of Article 88. However, it remains to be seen what view the Fair Trade Commission will take as to how such notice should be worded in order not to contravene the Fair Trade Law.