Article 17(2) of the Taiwan Patent Act states:

“If the delay of a statutory time period is caused by natural calamity or other cause(s) not attributable to the applicant, the applicant may, within thirty (30) days after cessation of such cause, file a written request with the Specific Patent Agency stating the cause(s) for delay and requesting for reinstatement. An application for reinstatement shall not be accepted if the delay has exceeded one (1) year after expiration of the statutory time period.”

In the Intellectual Property and Commercial Court’s 110 Year Xing zhuan Litigation No. 25 Administrative Litigation Case (hereinafter referred to as “this case”), the plaintiff argues that the statutory time period of the request for division of the patent application in dispute was delayed by the impact of Covid-19 epidemic, so the aforementioned article should apply. However, the defendant-TIPO concluded that the evidence presented by the plaintiff could not prove that the request for division of the patent application could not be filed due to the impact of Covid-19 epidemic, so the aforementioned article could not be applied. The plaintiff disagreed with the decision of TIPO and brought this case to the Intellectual Property and Commercial Court. After reviewing the case, the Court found that the decision of TIPO was not unlawful, and the plaintiff’s lawsuit was dismissed.

From this judgment of the case, it can be found that the jurisprudence relied by the Intellectual Property and Commercial Court is the teaching of the judgment of Supreme Administrative Court 95 Year pan tzu No. 965:

“ the so-called natural disasters refer to natural disasters such as wind disasters, floods, earthquakes or tsunamis. Cause(s) other than natural disasters that should not be attributed to the applicant should be determined according to objective standards. All events that are unforeseeable or unavoidable by the care of ordinary persons are included. However, if there are only subjective causes that should not be attributable to the applicant, then the filing for reinstatement shall not be made.”

The author believes that it is inappropriate to cite the above teaching of the Supreme Administrative Court because the “cause not attributable to the applicant ” stated by the plaintiff was the impact of Covid-19 epidemic. The statement in the complaint, such as “the number of infected people in South Korea is higher than that of other listed countries,…”, and “the news media reports….The South Korean Patent Office’s announcement on the extension of time limit and fee reduction, …, the South Korean government’s relevant religion, education group social distancing and hygiene regulations…, etc.” was the evidence used by the plaintiff to prove that he was impacted by Covid-19 epidemic.

In other words, the reason why the defendant-TIPO denied the plaintiff’s application for delaying the statutory period according to the above article of Taiwan Patent Act was a matter of whether the evidence provided could prove the matter to be proved, not because the plaintiff had a subjective cause that should not be attributable to him.

Thus, it is the author’s view that whether the decision was based on the teaching of the judgment of Supreme Administrative Court 95 Year pan tzu No. 965, or on the probative force of the evidence, there should have been no difference in the result. However, as a professional court of intellectual property, the Intellectual Property and Commercial Court should have made a reasonable judgment without harming its reputation.