The Legislative Yuan Passed “Cross-Strait Agreement on Intellectual Property Right Protection and Cooperation” and Relevant Measures.

E100818Y5 Sep. 2010（E130）

The Legislative Yuan passed the seventeen articles of “Cross-Strait Agreement on Intellectual Property Right Protection and Cooperation” on the second reading in an extraordinary session on August 17, 2010. Also, the third reading of the amendments to Article 27 and 28 of the Patent Act, Article 4 of the Trademark Act, and Article 17 of the Plant Variety and Plant Seed Act were completed at the Legislative Yuan (see the tables below). After singing of the Cross-Strait Agreement on IPR Protection and Cooperation, both sides of the Strait will have to mutually recognize the priority rights of patent, trademark, and plant variety rights.

Juxtaposition tables of the amended/current articles of the three Acts are provided below.

§ Amendments to Article 27 and Article 28 of Taiwan Patent Act §
Amended Articles	Current Articles
Article 27 A patent applicant, who has filed his/her first patent application legally in respect of an invention in a country which allows ROC nationals to claim priority based on reciprocity or in a member of the World Trade Organization (hereinafter referred to as the "WTO") and has filed his/her patent application for the same invention in the ROC within twelve (12) months from the filing date of his/her first patent application in said foreign country, may claim a priority for his/her ROC application. Subject to the provisions of the preceding Paragraph, in case an applicant claims for two or more priority rights in a single patent application, the beginning date for calculation the priority period shall be the day following the earliest priority date. If the foreign applicant is a citizen of a non-member country of the WTO and his/her home country does not maintain a relation for mutual recognition of priority rights with the ROC but the applicant has a residence or business office in a member country of the WTO or in the territory of a reciprocal country, the applicant shall also be entitled to claim priority in accordance with the provisions set forth in Paragraph One of this Article. For a patent application claiming priority, the priority date shall be used as the reference date in the examination of the patent requirements.	Article 27 A patent applicant, who has filed his/her first patent application legally in respect of an invention in a member of the World Trade Organization (hereinafter referred to as the "WTO") or in a foreign country which allows ROC nationals to claim priority based on reciprocity and has filed his/her patent application for the same invention in the ROC within twelve (12) months from the filing date of his/her first patent application in said foreign country, may claim a priority for his/her ROC application. Subject to the provisions of the preceding Paragraph, in case an applicant claims for two or more priority rights in a single patent application, the beginning date for calculation the priority period shall be the day following the earliest priority date. If the foreign applicant is a citizen of a non-member country of the WTO and his/her home country does not maintain a relation for mutual recognition of priority rights with the ROC but the applicant has a residence or business office in a member country of the WTO or in the territory of a reciprocal country, the applicant shall also be entitled to claim priority in accordance with the provisions set forth in Paragraph One of this Article. For a patent application claiming priority, the priority date shall be used as the reference date in the examination of the patent requirements.
Article 28 An applicant claiming priority in accordance with the preceding Article shall, when applying for patent, simultaneously file a statement and declare in the written application the filing date of the his/her first application as well as the foreign country or the member of the WTO in which the same application was filed. The applicant shall, within four (4) months from the filing date, submit the documents issued by the foreign country or the WTO member declared in the preceding Paragraph evidencing the acceptance of said foreign application. Violation of the provisions set forth in the preceding two Paragraphs shall cause the deprivation of the priority right.	Article 28 An applicant claiming priority in accordance with the preceding Article shall, when applying for patent, simultaneously file a statement and declare in the written application the filing date as well as the foreign country in which the same application was filed. The applicant shall, within four (4) months from the filing date, submit the documents issued by the government of the foreign country declared in the preceding Paragraph evidencing the acceptance of said foreign application. Violation of the provisions set forth in the preceding two Paragraphs shall cause the deprivation of the priority right.

§ Amendments to Article 4 and Article 94 of Taiwan Trademark Act §
Amended Articles	Current Articles
Article 4 An applicant of a trademark, which was filed in a country mutually recognizing priority right with the Republic of China or in a member of the World Trade Organization (hereinafter referred to as the "WTO") and was registered in pursuance to the domestic legislation of that country, may claim priority right in the Republic of China within six months counting from the next day of the first filing date of that trademark application. Priority claims made in accordance with the preceding paragraph shall be made at the same time when filing for an application, in which the filing date of the first patent application and the country or the WTO member admitting that foreign application shall be clearly indicated. The applicant shall submit, within three months from the next day of its filing date in the Republic of China, a certified copy of the application admitted by the said foreign country or the WTO member. Those who violate against any of the preceding two paragraphs shall lose the priority right. The priority date shall be referred as the filing date of those claiming priority rights.	Article 4 An applicant of a trademark, which was filed in a country mutually recognizing priority right with the Republic of China and was registered in pursuance to the domestic legislation of that country, may claim priority right in the Republic of China within six months counting from the next day of the first filing date of that trademark application. Priority claims made in accordance with the preceding paragraph shall be made at the same time when filing for an application, in which the foreign filing date and the country admitting that foreign application shall be clearly indicated. The applicant shall submit, within three months from the next day of its filing date in the Republic of China, a certified copy of the application admitted by the said foreign country. Those who violate against any of the preceding two paragraphs shall lose the priority right. The priority date shall be referred as the filing date of those claiming priority rights.
Article 94 This Act shall come into force six (6) months after the date of promulgation thereof. The date on which the Act shall come into force shall be decided by the Executive Yuan.	Article 94 This Act shall come into force six (6) months after the date of promulgation thereof.

§ Amendments to Article 17 of The Plant Variety and Plant Seed Act §
Amended Articles	Current Articles
Article 17 An applicant for a plant variety right in the R.O.C. may claim a priority right on the basis of the applicant’s first application for a plant variety right duly filed in a country or a member of the World Trade Organization (hereinafter referred to as the "WTO") as long as the country and the R.O.C. mutually recognize priority rights, and the R.O.C. application is filed within twelve months from the day immediately following the filing date of the first application for the same plant variety. An applicant claiming the priority right in accordance with the requirements of the preceding Paragraph shall state such claim at the time of filing the application in the R.O.C., and shall submit the documents issued by the country or the WTO member certifying the acceptance of such foreign application within four months from the date immediately following the filing date in the R.O.C.　Applicants who fail to comply with the above requirements shall lose the right to claim priority in the R.O.C. The priority date of an applicant who claims a priority right shall govern with respect to examination of whether the plant variety right application meets the requirements for a plant variety right.	Article 17 An applicant for a plant variety right in the R.O.C. may claim a priority right on the basis of the applicant’s first application for a plant variety right duly filed in a foreign country as long as the foreign country and the R.O.C. mutually recognize priority rights, and the R.O.C. application is filed within twelve months from the day immediately following the filing date of the first application for the same plant variety. An applicant claiming the priority right in accordance with the requirements of the preceding Paragraph shall state such claim at the time of filing the application in the R.O.C., and shall submit the documents issued by the government of the foreign country certifying the government’s acceptance of such foreign application within four months from the date immediately following the filing date in the R.O.C.　Applicants who fail to comply with the above requirements shall lose the right to claim priority in the R.O.C. The priority date of an applicant who claims a priority right shall govern with respect to examination of whether the plant variety right application meets the requirements for a plant variety right.