Press Enter to Center block
:::

Intellectual Property and Commercial Court

:::

2010 Min Zhuan Shang Zi No. 21

font-size:
Decision No. 2010 Min Zhuan Shang Zi No. 21
Date August 25, 2011
Decision Highlight

That is, (Paragraph 1) an owner of a product patent, except as otherwise provided in this Act, has an exclusive right to prevent others from, without her consent, making, offering for sales, selling, using, or, for purposes of the above-mentioned acts, importing such products. (Paragraph 2) An owner of a method patent, except as otherwise provided in this Act, has an exclusive right to prevent others from, without her consent, using such the method and making, offering for sales, selling, using, or, for purposes of the above-mentioned acts, importing the products made by such the method. Those are expressed in Article 56, Paragraphs 1, 2 of the Patent Act. Those are a right-to-prevent exclusively owned by a patentee. And, with respect to approval of a patent or the scope of a patent right, our national patent system adopts the principles of territoriality. It origins from Article 4bis of the Paris Convention (Patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether members of the Union or not.). Different patent applications have to be filed separately in each member country, and will be examined by the patent agency of each country to decide whether to grant a patent and within what scope a patent is granted. Once a patent application is approved by the patent agency of each country, and then it becomes a patent right independently for which each jurisdiction decides the protective scope and measure itself. That is, a patent granted by each member state is an independent right. Acquisition, revocation, or change of a patent right, or the establishment of infringement is independent. a patent is valid only in the country which grants such patent, and it does not extend to other countries. As a result, regarding a patent acquired under our national patent law, the scope of the power of such patent and the applicability of such patent are limited to our national territory. Thus, as long as a person acts to infringe our national patent by doing manufacturing or sales in our country, the applicability of our national patent then extends to that act. As for an act of manufacturing or sales in other countries, such act is not subject to the scope of a patent right which the owner of our national patent can enforce. There is no need to consider the legal judgment on foreign acts based on foreign patent laws.

Keywords

Scope of the power of a patent right

Relevant statutes Article 56, Paragraphs 1, 2 of the Patent Act; Article 4bis of the Paris Convention
  • Release Date:2020-11-13
  • Update:2020-12-07
Top