Chapter 2: Introduction to Intellectual Property Rights
2.2 Objective of Providing Patent Protection
Table 1 Types of Patents in The United States
Types of Patent Length of Protection
Scope of Protection
Utility Patent 20 years Inventions that show "novelty" and are not obvious, that have been developed to the point that they can be utilized in industry
Design Patent 14 years Creations or improvements relating to the form, construction, or fitting of an object. Design patents are not subject to the payment of maintenance fees.
Plant Patent 20 years Issued for a new and distinct, invented or
discovered asexually reproduced plant including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state.
Plant patens are not subject to the payment of maintenance fees.
In Taiwan, all patent applications must be filed with Taiwan Intellectual Property Office (TIPO). Table 2 shows different types of patent in Taiwan, including the length of protection and the scope of protection for each types of patent.
Table 2 Type of Patents in Taiwan
Types of Patent Length of Protection
Scope of Protection Invention
Patent12
20 years Inventions that show "novelty" and are not obvious, that have been developed to the point that they can be utilized in industry
New Utility Model Patent13
10 years Creations or improvements relating to the form, construction, or fitting of an object (in general, technical requirements are not as high as those for an invention patent)
New Design Patent
12 years Original visual designs relating to the shape, pattern, color, or a combination thereof of an object
2.2 Objective of Providing Patent Protection
Under the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), every WTO member states should made patents available to its citizens for any invention, in all fields of technology, and
12 發明專利
13 新型專利
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the term of protection available should be a minimum of twenty years14. Invention is given protection for a period of time, offering market exclusivity and economy monopoly to the inventor, in exchange inventor has to disclose and share the invention to the public. The protection offered by a patent exclusivity allows patent owner to pay off the associated research and development cost incurred during invention.
An inventor has to disclose the “best-mode” of their invention to the public in exchange of getting an exclusivity protection. Pubic disclosure of an invention could help improving the world’s technology because everyone in the world will have the access to the disclosed invention and scientist could perform scientific research based on the findings and foundation laid by the people before them. Sharing new invention to the public allows the probability of repeated R&D, thus could avoid spending unnecessary research funding.
Besides that, WIPO treaty is premised on the notion that protecting intellectual property right could effectively maintain economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:
One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development15.
In 1996, being aware of the heavy reliance of OECD economies on knowledge and information, the OECD founded by 34 economic bodies has published a report on the “Knowledge Based Economy”. The truth that the export of knowledge-intense high-technology products have doubled in late 1990s compared to 1970s indicated the arrival of knowledge-based economy. It is estimated that more than 50% of Gross Domestic
14 Article 27.1, TRIPs Agreement.
15 WIPO Intellectual Property Handbook (n.d.), p.3, World Intellectual Property Organization, Retrieved from http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf
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Product (GDP) in the major OECD economies is now knowledge-based16. Besides that, research from WIPO and United Nations University measuring the impact of IP on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth17".
A patent is just a worthless paper without protection given by a government.
Shall a government strictly enforce intellectual property rights protection, it would give the inventor faith and security to safely invent and disclose their invention because they knew they could seek for legal remedy shall their patent been infringed. Thus, patent system not only could promote scientific improvement, but also contribute to economic and social development.
2.2.2 PCT- Patent Cooperation Treaty
Patent Cooperation Treaty, frequently known as PCT is a treaty that allows applicant to seek for patent protection internationally and helps patent offices in 148 countries around the world with their patent granting decision. Besides that, PCT aims to facilitate public access to information relating to those inventions18.
PCT is created under an international patent law treaty in The Washington Diplomatic Conference and was signed on 19 June 1970. Any contracting state of the Paris Convention for the Protection of Industrial Property could be a member of the PCT. It provides a unified procedure for filing patent application among member states.
Almost every major country in the world is a member of the PCT, with a few exceptions including Taiwan, Argentina and Macau19.
Patent filed under the PCT is known as International Application, or PCT application, because it is not equivalent to a grant of a patent. There is no such thing known as “international patent” because the power of granting a patent remains under
16 The Knowledge Based Economy (1996), Organization of Economic Co-operation and Development, Retrieved from http://www.oecd.org/sti/sci-tech/1913021.pdf
17 Measuring the Economic Impact of IP Systems (2007), World Intellectual Property Organization, Retrieved from http://www.wipo.int/portal/en/news/2007/article_0032.html
18 PCT – The International Patent System (n.d.), WIPO, Retrieved from http://www.wipo.int/pct/en/
19 A list of countries not the member of Patent Cooperation Treaty could be found here: http://www.patent-ideas.com/international-patents/countries-not-members-of-pct.aspx
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control of a nation’s patent office, e.g. USPTO. What PCT offers is the convenience to an inventor for getting priority in a line internationally: It establishes a filing date in all contracting states when an inventor applies to PCT; upon granting a PCT application, the inventor could then apply for patent in each jurisdiction with an earlier date ahead of all other applicants.
Figure 1 PCT Application Timeline20
In most cases, an inventor has 18 months from the time he or she applied for International Application (PCT filing) to apply national patent to any member states.
An inventor could also claim a priority date up to 30 months while applying for International Application if he or she has an earlier patent application. Inventor has to apply the International Application within 12 months (PCT Filing/Priority Date) of the first national patent application (See Figure 1).
International Application should be made in one language with a Receiving Office; Receiving Office could be WIPO Office, or any PCT contracting state’s national patent office. An International Searching Authority would then perform a search and issue a written opinion regarding the patentability of the invention before publishing the International Application. The inventor has an 18 months window to apply to any member states before PCT priority date expires. The granting of patents
20 What is the PCT? (Jun 8, 2011), Hawk IP Dashboard, Retrieved from http://www.hawkip.com/advice/what-is-the-pct
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remains under the control of the national or regional patent Offices in what is called the
“national phase”21. With the priority date benefits provided by PCT, the 30 months time period is crucial for a technology to develop more maturely and allowing the inventor or patent holder to raise more capital to market their product. Since PCT Application is accompanied with an international preliminary search, it appeared that filing PCT Application would facilitate the national phase patent application process22.
21 PCT – The International Patent System, WIPO, Retrieved from http://www.wipo.int/pct/en/
22 Oppendahl, C. (June 1999), Filing A PCT Application May Lead To A Faster, Cheaper US Patent, Oppedahl
& Olson LLP, Retrieved from http://www.oppedahl.com/pubs/pctfaster.htm
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