With the development of technology, cameras and mobile phones now have various built-in shooting modes or parameters that enable photographers to shoot different scenes quickly. Traditionally, photographers would have had to adjust the parameters themselves. Notably, in two recent decisions the IP Court ruled that photographic works taken using built-in shooting modes or parameters can meet the Copyright Act's requirements for creativeness (originality).
A pitfall that is difficult to avoid when determining whether a patent is non-obvious is hindsight bias when comparing a patent with prior art. This is why the Taiwan Patent Examination Guidelines have introduced secondary considerations to determine the non-obviousness of a patent, including 'unexpected results', 'long-felt but unsolved needs', 'overcoming technical prejudice' and 'commercial success'.
Research and development (R&D) efforts for COVID-19 diagnosis and treatment methods are in full swing. To promote and protect the results of this R&D, the Taiwan Intellectual Property Office (TIPO) has verified the Taiwanese patent database by comparing it with the COVID-19-related clinical trials currently registered in the US clinical trial database. Further, TIPO has released current Taiwanese patent information regarding COVID-19-related clinical trial drugs for public reference.
The Supreme Administrative Court recently considered whether a patent lacked an inventive step due to teaching away. The disputed patent had been challenged before the Intellectual Property Office, which had rejected the appellee's invalidation action. Under Taiwan's patent examination guidelines, when determining whether a patent has an inventive step, all of the content disclosed in the prior art must be considered, including any prior art that teaches away from the applied-for invention.
A recent IP Court judgment has clarified the grounds for proving infringement using a patented manufacturing process. While the Patent Act provides for the shifting of the burden of proof, prospective owners of manufacturing process patents must consider whether an article made using a patented manufacturing process is unknown in or outside Taiwan before filing an application (or otherwise protect the invention using a product patent).
The Copyright Act provides that "fair use of a work shall not constitute infringement on economic rights in the work". However, should an exploiter of a work be considered to be infringing the author's right of paternity if he or she exploits the work within the reasonable scope of fair use, as specified in the act, but fails to provide a clear indication of the source of the work? The IP Court recently provided conflicting opinions on this matter.
The IP Court recently held that fair use does not necessarily protect an individual from infringement of the right of paternity. Instead, this depends on whether such action would have misled others into thinking that a work was by an anonymous author or another individual. However, the relationship between the fair use of a work and annotation of its origin and the right of paternity has yet to be resolved.
Trade dress may be protected mainly by design patents, trademarks and copyright. If trade dress does not conform to any of these, supplementary protection will be provided under the Fair Trade Act. The act stipulates that if an enterprise uses a commonly known symbol of goods or services, which is not a registered trademark, for the same or similar goods or services so as to cause confusion, the rights holder may bring a civil claim for damages.
The influx of new inventions following the internet tech boom has led to a corresponding increase in orphan works. As a result, many people are finding it increasingly difficult to comply with the Copyright Act, which requires the authorisation or consent of a copyright owner before the work may be used. To promote the circulation and use of works while maintaining fairness, the Taiwan Intellectual Property Office recently proposed an amendment to the act that would add rules to govern orphan works.
Central authority approval is necessary for certain patents to ensure their safety and effectiveness. As a result, there is often a gap between a patent's approval and the launch of the product for sale. To compensate owners for time spent acquiring approval, an extension system was introduced under the Patent Act 1994. IP Court judgments have since provided clear explanations regarding the time spent acquiring approval, during which patent owners cannot make use of their inventions.
The IP Court recently held that not all forms of trademark representation should be protected by copyright. Copyright protection may apply to the device portion of the mark if appropriate, but the word portion is not subject to protection under the Copyright Act. In determining whether the representation of a trademark is entitled to copyright protection, the court appears to have adopted a principle of separate distinctions for different components.