一、
Supposed one of the patent inventors is wrongfully left behind from the inventorship in a registered patent. Besides the civil action remedy, please describe the alternative legal solution, which such above-mentioned inventor could advance from the perspective of Patent Act in R.O.C.（30 分）
Tentative Answer (score aim at 70%):
According to Article 12, Paragraph 1 of the ROC’s Patent Act, the right to apply for a patent belongs to the co-owners, and the application must be filed by all co-owners. This means that, in principle, all participants making substantial contributions to an invention should be its co-owners and therefore entitled as a whole to file a patent appication of that invention. In other words, the inventorship should belong to all of the inventors.
If one of the inventors is wrongfully excluded from the inventorship in a registered patent, he may file with the Patent Authority within two years from the publication date of the patent an invalidation action with evidences of his inventorship, such that the patent may be revoked under Article 71 of the Patent Act. Then, based on Article 35, he may apply for a patent for the same invention within two months after said revocation is confirmed (i.e., being revoked finally and bindingly), while the application date shall be considered as the same filing date of the revoked patent. This legal remedy provides a way for an excluded inventor to assert his rights without resorting to civil litigation. It is a specialized procedure designed to address issues of patent entitlement and inventorship directly within the framework of the Patent Act.
Nevertheless, some academic opinions have risen against this administrative practice by claiming that an inventorship, by nature as private rights, should be determined through a civil litigation among interests concerned parties without any administrative intervention.
Supposed one of the patent inventors is wrongfully left behind from the inventorship in a registered patent. Besides the civil action remedy, please describe the alternative legal solution, which such above-mentioned inventor could advance from the perspective of Patent Act in R.O.C.（30 分）
Tentative Answer (score aim at 70%):
According to Article 12, Paragraph 1 of the ROC’s Patent Act, the right to apply for a patent belongs to the co-owners, and the application must be filed by all co-owners. This means that, in principle, all participants making substantial contributions to an invention should be its co-owners and therefore entitled as a whole to file a patent appication of that invention. In other words, the inventorship should belong to all of the inventors.
If one of the inventors is wrongfully excluded from the inventorship in a registered patent, he may file with the Patent Authority within two years from the publication date of the patent an invalidation action with evidences of his inventorship, such that the patent may be revoked under Article 71 of the Patent Act. Then, based on Article 35, he may apply for a patent for the same invention within two months after said revocation is confirmed (i.e., being revoked finally and bindingly), while the application date shall be considered as the same filing date of the revoked patent. This legal remedy provides a way for an excluded inventor to assert his rights without resorting to civil litigation. It is a specialized procedure designed to address issues of patent entitlement and inventorship directly within the framework of the Patent Act.
Nevertheless, some academic opinions have risen against this administrative practice by claiming that an inventorship, by nature as private rights, should be determined through a civil litigation among interests concerned parties without any administrative intervention.