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At a special session on August 17, 2010, the Legislative Yuan passed the 17-article Cross-Strait Agreement on IPR Protection and Cooperation, along with amendments to Articles 27 and 28 of the Patent Act, Articles 4 and 94 of the Trademark Act, and Article 17 of the Plant Variety and Plant Seed Act. All amendments were promulgated by the Presidential Office on August 25 and entered into force on September 12. In conjunction with this revised legislation, a preview of five amended articles within the Enforcement Rules of the Patent Act was published on September 10.
With the signing of the cross-strait IPR agreement, Taiwan and Mainland China will observe mutual recognition of priority rights to patents, trademarks and plant varieties within the spirit of WTO principles. Due to the lack of clarity on this matter as formerly written in Article 28 of the Patent Act, Article 4 of the Trademark Act and Article 17 in the Plant Variety and Plant Seed Act, amendments have been made to each of these articles.
The Patent Act amendment contains new language stating that patent applicants claiming priority rights shall declare, in the written application, the foreign country or WTO member territory in which the corresponding application was filed, and shall also submit the documents issued by the foreign country or WTO member territory government evidencing the acceptance of said foreign application. The Trademark Act amendment consists of a similar addition and is now written in the following manner:
“An application of trademark, which was filed in a country or WTO member territory mutually recognizing priority right with Taiwan and was registered in pursuance to the domestic legislation of that country, may claim priority right in Taiwan…The priority right applicant shall submit a certified copy of the application admitted by the said foreign country or WTO member territory.”
The amended Plant Variety and Plant Seed Act now states that applicants for plant variety rights in Taiwan may claim priority rights on the basis of the applicant’s first application for a plant variety right duly filed in a foreign country or WTO member territory, as long as priority rights are mutually recognized between Taiwan and the foreign territory and the Taiwanese application is filed within a specified time period. Further information on all amendments (Chinese language only) can be viewed via the following links: Trademark Act, Article 4 and 94│Patent Act, Article 27 and 28│Plant Variety and Plant Seed Act, Article 17