“(Paragraph 1) For a patent application for design that is approved, the grant of such patent application shall be published only when the patent certificate fee and the first-year patent annuity are paid by the applicant within three (3) months after the date on which the approval decision is served; if the fees are not paid within the said time period, no publication shall be made. (Paragraph 2) A patent right granted to a patent application for design shall start from the publication date of the patent, and a patent certificate shall be issued thereto.” These are expressly provided in Article 113 Paragraph 1 and Paragraph 2 of the 2010 Patent Act. According to Article 47 Paragraph 1 of Patent Act, “publication of patented invention and application for browsing a claimed invention shall be patented if there is no reason for negating its patentability, and the claim(s) and the drawing(s) of the patent application shall be published.” Moreover, Article 47 shall apply mutatis mutandis to design patent under Article 142. It follows that it is after an applicant obtains a patent after publication, the applicant as a patentee may claim for damages and exercise the right to exclude patent infringement. In addition, there exists a compensation system for invention patent in order to compensate patentees for their loss of not obtaining a patent right between the patent application is laid open and patent grant. However, this provision concerning the right to claim compensation does not apply to utility patent and design patent. Since the patent right has not existed before a patentee obtains a design patent, there is neither patent infringement nor the right to claim compensation. Although the patent at issue is valid and the accused infringing product falls into the scope of patent claim, the accused infringing product was made and installed before June 30, 2011. At that time, plaintiff did not obtain the patent at issue. Thus, the defendant did not infringe the patent at issue.

The right to claim compensation, publication