2014 Xing Zhuan Su Zi No. 22
|Decision No.||2014 Xing Zhuan Su Zi No. 22|
|Date||November 27, 2014|
Article 19 of the Patent Act stipulates that “Application for patent and other relevant proceedings may be processed electronically; the implementation of which shall be prescribed by the competent authority.” Article 9 Paragraph 1, 2, and 5 of Regulations Governing the Implementation of Filing Patent Applications authorized by the preceding article stipulates, respectively, that “If parts or the entire electronic patent application documents are unidentifiable or incomplete, the electronic transmission of the whole electronic patent application documents shall be deemed not to have been made.” “If the electronic patent application documents carry viruses or malicious codes, they shall be deemed as unidentifiable.” “In case the circumstances prescribed under Paragraph 1 and 2 occur, the Specific Patent Agency shall notify the user.” The legislative purpose is that currently when transmitting data from A machine to B machine on the Internet, the electronic files on A machine are technically divided into a number of small packages, and after transmitting those small packages to B machine through computers under Internet Communication Protocol, the packages will be recombined into the original electronic files. Since the design of the computer is a combination of 0 and 1, if something goes wrong when recombining packages in the above transmission, the electronic files will be partly or all incomplete. At that time, it will be impossible to recognize the contents of the files and the whole patent electronic application document will be deemed not to be electronically delivered. In addition, if an electronic document received by the Specific Patent Agency is checked with viruses or other malicious codes, the appropriate solution will be isolating that document because the detoxification process may cause an unpredictable damage to the information system of the Specific Patent Agency. And since it is impossible to examine that document, the whole document should be deemed unrecognizable. Considering that the combining errors or virus infections are not predictable or controllable by applicants, Article 9 Paragraph 5 of Regulations Governing the Implementation of Filing Patent Applications stipulates that the defendant shall notify the applicant for it to take appropriate responsive measure (see the legislative explanation of Article 9 of Regulations Governing the Implementation of Filing Patent Applications). Therefore, the circumstances that should be notified to the users in Article 9 Paragraph 5 of Regulations Governing the Implementation of Filing Patent Applications are only limited to circumstances prescribed under Paragraph 1 and 2. Because the above circumstances are caused by mistakes or viruses which are not attributable to the applicants, the Specific Patent Agency should be obliged to notify the users so that the users can react immediately. Since the applicant uploads wrong file, blank file or incomplete file from the beginning, his mistake is neither caused by errors in the transmission of the file nor due to virus infection and can thus be avoided by applicants. As a result, this case does not fall into the scope of Article 9 Paragraph 1 and 2, and Paragraph 5 of the same Article should not be applied consequently.
|Relevant statutes||Article 19 of the Patent Act, Article 9 Paragraph 1, 2, and 5 of the Regulations Governing the Implementation of Filing Patent Applications and Services by Electronic Means|
- Release Date:2020-11-13