The “Positive Patent Examination Pilot Program for Startup Companies” has been announced in order to provide assistance in assessing patentability of inventions and encourage startup companies to apply for invention patents. The Taiwan Intellectual Property Office (TIPO) has recently revised the pilot plan that had previously been implemented for a trial period of one year starting from January 1, 2022. The newly revised pilot plan is scheduled to be implemented for a one year trial period starting from January 1, 2023. In the revised pilot plan, a startup company is defined as a company founded within eight years to replace the original requirement of establishment within five years.

1. Eligibility Requirements:

Applicants intending to request participation in the Pilot Program must note the following:

．the applicant who filed an invention patent application must qualify as a startup company at the time of filing, and the request for participation in the Pilot Program must also be made by the same startup company who is the applicant;

．a notification of entering substantive examination for the invention patent application has been issued by the TIPO; and

．no Examination Opinion or Decision of patent examination for the invention patent application has been issued by the TIPO.

2. Definition of a startup company:

．a startup company as defined in accordance with the Pilot Program is a company that has been founded under the Company Act issued in Taiwan or a foreign legal organization that has been founded for less than eight years. The term “founded for less than eight years” refers to a company having been founded for less than eight years on the filing date of an invention patent application. In the case of an invention patent application claiming priority, the priority date of the invention patent application shall be substituted for the filing date of the invention patent application for the calculation of the aforementioned period; and

．when a foreign company requests participation in the Pilot Program , a certification document of the founding date of the foreign company and a Chinese translation thereof must be provided. If the certification document is not an original document, the applicant must provide an affidavit.

3. Implementation of the Pilot Program:

(1) The maximum number of invention patent applications accepted per month under the Pilot Program is six.

(2) Each startup company as an applicant can submit up to five invention patent applications for the Pilot Program in the same year.

(3) In principle, after the TIPO receives a request for the Pilot Program and an invention patent application meets the above-mentioned requirements, if there is a reason for rejection of the invention patent application, the TIPO provides the applicant with interview materials including a search report related to novelty and inventiveness and other possible materials such as a brief statement indicating grounds for rejection within one month after submitting the request for the Pilot Program.

(4) In principle, the TIPO shall arrange a positive interview within one month after the applicant receives the above-mentioned interview materials. During the positive interview, an examiner assigned by the TIPO shall indicate the reasons why the invention patent application is deemed to lack patentability and also make suggestions to ensure that a patent right can be granted.

(5) The applicant must submit an argument and/or an amendment within one month after the positive interview. If the argument and/or the amendment is not submitted within the time limit, the invention patent application is deemed to not comply with the requirements of the Pilot Program.

(6) If the applicant submitted the argument and/or the amendment within one month after the positive interview, the TIPO, in principle, shall issue an Approval Notification or Examination Opinion within one month after the applicant submitted the argument and/or the amendment.

(Summarized and translated from the News published on the TIPO’s website)

*Section Chief of International Patent Division at Tai E International Patent & Law Office