- May 30 Mon 2016 11:08
- May 27 Fri 2016 13:06
美國專利的圖式相關規定，記載於37 CFR § 1.84.(註1)當中。本文針對圖式所使用的視圖、編號、參考符號、導引線及箭頭做介紹：
- 數字、字母及參考符號的高度須至少0.32 cm. (1/8 inch)，且不應被編排在圖式中，意即數字、字母及參考符號不可跨越線條或與線條混合在一起，也不應被放在剖面或陰影面上，以避免干擾讀者對圖式的理解。但必要時，例如標示表面或剖面時，可於參考符號下方畫底線，並在該表面或剖面的一小部分留白，以放置畫底線的參考符號，使該參考符號可以輕易被讀取分辨。
- May 27 Fri 2016 12:01
美國專利的圖式相關規定，記載於37 CFR § 1.84.(註1)當中。本文針對圖式所使用的紙張的種類、尺寸、邊界、圖式的識別以及視圖的編排原則做介紹：
- 21.0cm. × 29.7cm. (DIN size A4)
- 21.6cm. × 27.9cm. (8 1/2inch × 11inch)
不可在頁面的周圍設置框線，但須在紙張的兩對角線的角落設置掃描目標點，例如十字線。且每一紙張頁面須預留上邊界至少2.5 cm. (1 inch)、左邊界至少2.5 cm. (1 inch)、右邊界至少1.5 cm. (5/8 inch)以及下邊界至少1.0 cm (3/8 inch)。也就是說當使用21.0cm. × 29.7cm. (DIN size A4)的紙張時，實際使用區域須小於17.0cm. × 26.2cm.；當使用21.6cm. × 27.9cm. (8 1/2inch × 11inch)的紙張時，實際使用區域須小於17.6cm. × 24.4m. (6 15/16inch × 9 5/8 inch)。
- 圖式的識別(Identification of drawings)：
在每一紙張的上方應標示發明名稱、發明人姓名及申請案號。在尚未獲得申請案號時，如果有檔案號碼(docket number)，可以使用檔案號碼代替申請案號。在申請日之後才提供的圖式，還須在每一紙張頁面的上方標示「Replacement Sheet」或是「New Sheet」字樣(註)。另外所提交的劃線頁副本，若在修改過的圖式中有加註圖式的修改處時，則須在劃線頁副本上清楚標示「Annotated Sheet」(註)。
- May 27 Fri 2016 11:58
美國發明專利(utility patent)以及設計專利(design patent)的圖式相關規定，記載於37 CFR § 1.84.(註1)當中。目前可接受的圖式類型有以下幾種：
“The patent or application file contains at least one drawing executed in color. Copies of this patent or patent application publication with color drawing(s) will be provided by the Office upon request and payment of the necessary fee.”(註2)
然而，雖然彩色圖式可被允許使用在設計專利中，但發明專利只有在少數情況下才可使用彩色圖式。由於國際申請案(註3, PCT Rule 11.13)不接受彩色圖式，因此發明專利若要使用彩色圖式，須先提出說明使用彩色圖式的必要性，並且在獲得USPTO允許後始可使用。
在一般情況下，並不允許使用照片以及照片的影印本作為圖式，除非照片或顯微照片是唯一可揭示發明內容的媒介，例如：電泳膠(electrophoresis gels)、墨點(blots)、放射性自體顯影(auto-radiographs)、細胞培養(cell cultures)、組織切片(histological tissue cross sections)、動植物的活體影像(vivo imaging)、薄膜層析片(thin layer chromatography plates)、晶體結構(crystalline structure)及裝飾效果(ornamental effects)等等。但若審查委員認為所提供的照片可以使用圖式替代時，審查委員可要求以圖式替代照片。
- May 26 Thu 2016 17:31
- May 26 Thu 2016 17:29
- May 26 Thu 2016 17:25
- May 26 Thu 2016 17:17
- May 20 Fri 2016 17:01
- May 19 Thu 2016 14:28
Bilateral Investment Treaties Concluded by Taiwan
A Bilateral investment treaty (BIT) is an agreement between two countries that sets up the rules for foreign investment in each other’s countries, providing companies and individuals with special rights and legal protections when they invest in a foreign country. Therefore, in order to address foreign investors’ concerns and promote investing, many countries have entered intro bilateral treaties for the protection of investment. When two countries enter into a BIT, both agree to provide protections for the other country’s foreign investors that they would not otherwise have, reducing many of the risks associated with foreign investment. It provides major benefits to foreign investors, including fair and equitable treatment. A key protection offered by the majority of bilateral investment treaties is to allow international arbitration in the event of an investment dispute, rather than to force foreign investors to sue the host-State in its own courts. In this context, BITs are typically created to promote investment in the host State.
The United Nations Conference on Trade and Development (UNCTAD) reaches the following 23 bilateral investment agreements in force concluded by the Republic of China with the following contracting states:
Date of signature
Date of entry into force
- May 16 Mon 2016 11:52
Rules of intestacy in Spain(II)
As mentioned before, Spain’s succession law operates a system of forced heirship, which means that certain percentage of the deceased’s assets in Spain must be transferred to people closely related to the deceased. Only through disinheritance the testator can deprive a forced heir of the property that would otherwise receive under the Spanish law of succession.
According to the Spanish Civil Code, it is possible to disinherit a child, and it is regulated by article 848 and following of the code.
Nevertheless, in order to disinherit, exclude someone to the inheritance, some legal requirements are met and it is mandatory that the testator performs the disinheritance through a will, which must also include a valid legal ground on which it is founded.
Bellow are the grounds to disinherit in the Civil Code:
- Specific reasons to disinherit descendants:
1. Children and descendants that have refused, without a legitimate reason, to support the parent or ascendant who disinherits him, and
2. Those who have mistreated the deceased in deed or seriously insulted him in speech.
3. The descendant who is sentenced in court for an attempt to take the life of the testator, his spouse, descendants or ascendants.
- May 16 Mon 2016 11:47
International Investment Treaty Arbitration
It was once a basic principle of international law that just a State could assert a claim against a different State when breaching its obligations to the first State’s nationals. However, the number of international treaty arbitration cases has grown dramatically in the past years, where foreign investors (individuals or legal entities) can claim against the “host States” where the investments where made. It is a very important factor in economic development, since it facilitates access to world markets, to worldwide distribution channels and other networks and it is a consequence from the phenomenon of globalization.
A country’s foreign investment climate is determined by the legal framework of foreign investment, which include, among others, stability of the legal conditions under an investor operates, the transparency of the system of local regulation and an effective system of dispute settlement. This last factor, an effective system of dispute settlement, is a particularly important one when it comes to legal protection of foreign investments.
In absence of other arrangements, a dispute between a foreign investor and a host State will usually be settled by the host State’s domestic courts. This fact is not an attractive option from the investor’s perspective for the following reasons: a) rightly or wrongly, the courts of the host State are not seen as sufficiently impartial in this kind of situations and b) the regular courts can often lack of the technical expertise required to solve complex international investment disputes.
Therefore, today direct arbitration between the host State and the foreign investor is the preferred option for this kind of disputes, and foreign investments enjoy international legal protection through a large number of investment treaties. There is as yet no single comprehensive treaty for the legal protection. Instead, there is a network of treaties which applies between two countries or among a number or countries.
In this context, Bilateral investment treaties (BITs) are international agreements between countries that provide companies and individuals with special rights and legal protections when they invest in a foreign country (the host State). BIT’s set out the terms and conditions for investment in one country by private companies and individuals of another country and are typically created to promote investment in the host State.
Investment treaties adopt an essentially private mode of adjudication dispute and that can make it a very similar figure to commercial arbitration, since both involve a claim by a private party before a tribunal of private arbitrators. However, notwithstanding the similarities, it would be a mistake to confuse both types of arbitration. Commercial arbitration originates an agreement between private parties to arbitrate disputes between both in a particular manner. The authority derives from the autonomy of every individual to chose and organize their own private affairs. On the other hand, investment arbitration originates in the authority of the state to use adjudication to solve disputes arising from the exercise of public authority. It is constituted by a sovereign act, as opposed to a private act.
- May 16 Mon 2016 11:46
Rules of intestacy in Spain
If Spanish law applies, in the event of being no will, when the will is null and void or has subsequently become invalid, legal intestate succession regime applies. For most of Spain, the law can be found in the Spanish Civil Code (1889), but some of the Autonomous Communities (six out of seventeen) have their own private law.
The Spanish Civil Code therefore establishes the general law, and articles 930 and follows establish a list of beneficiaries, identifying three categories of heirs: relatives (descendants, ascendants and collaterals), the surviving spouse and the State, and they are arranged in hierarchy of classes, which is summarized below:
- Descending direct line.
- Ascending direct line.
- Collateral relatives
- The State.
Under the principle of proximity of degree, the closest relatives exclude remote relatives (for example, a child excludes a grandchild and a parent excludes a grandparent), with the exception of the right of representation, in virtue of which the descendants of a predeceasing heir occupy that heir’s position. Also, relatives within the same degree inherit equally.
- The primary claim to inherit lies with the direct descendants, without any distinctions resulting from gender, age or filiation of the deceased, with no limitation of degree, but subject to a usufruct of 1/3 of the estate to the surviving spouse (if any). Children inherit the whole estate in equal shares and in their own right, but grandchildren and other descendants can only inherit by representation, taking the share which would have fallen to a predeceasing parent.
- In the absence of children and descendants of the deceased, his ascendants shall inherit, subject only to a usufruct of half of the estate in favour of surviving spouse. Father and mother shall inherit in equal shares, and in the event that only one of the parents survives, the surviving one shall inherit the whole estate from his child. In the absence of parents, the ascendants closest in degree will succeed. There is no limit of degree in the ascending line, nor is there representation in this case.
- When the deceased passes away without ascendants or descendants, the spouse inherits all of the deceased’s property. To be heir as a spouse, it is necessary to have been still married at the time of the death, this way a claim on intestacy is defeated by nullity, divorce and separation, whether judicial or de facto.
- In the absence of all of the above mentioned, the intestate estate passes to collateral relatives, beginning with siblings, who inherit equally, but also with the children of a predeceasing sibling taking the place of their parent.
- Finally, and in absence of descendants, ascendants, spouse or siblings, the deceased’s estate passes to the State, or in the case of Autonomous Communities with civil competence in this matter, to those Communities.
- May 12 Thu 2016 13:35
在「WTO與貿易有關的智慧財產權協定」(WTO Agreement on Trade Related Aspects of Intellectual Property, TRIPS) 出現以前，國際間對於是否以制定刑罰條款以保障智慧財產權，保持沉默。兩個重要的智慧財產權協定「巴黎公約」(the Paris Convention for the Protection of Industrial Property of 20 March 1883, Paris Convention) 與「伯恩公約」(Berne Convention for the Protection of Literary and Artistic Works)，均未強制會員國制定刑罰條款，將此視為各會員國的自主決定事項，尊重各該會員國內法的決定。
自我國決定加入「環太平洋戰略經濟夥伴協定」(Trans Pacific Partnership, TPP) 後，各界即開始好奇，TPP究竟會對我國法制造成何種衝擊，本文擬簡要介紹TPP的相關內容，以利我國企業針對未來的區域變動做出可能的預測與回應。
自日本加入起，至今TPP共有十二國參與談判，佔了全球GDP 38%、貿易量25%，儼然形成份量極重、足以影響下一代全球貿易規則的「鉅型區域貿易協定」(mega-regional trade agreement)。
- May 11 Wed 2016 16:16
RCEP 的主要成員是以東協10國加上日本、中國、韓國、印度、澳洲、紐西蘭等六國，共計16個國家所構成，形成區域全面經濟夥伴關係(Regional Comprehensive Economic Partnership, 簡稱RCEP)。RCEP成員國總人口約占全世界一半(34億人)，GDP約占全世界三成(20兆美元)，RCEP倡議實現後，其經濟規模將占全球年生產總值31.35%，達到23兆美元，是更近一步的自由貿易協定(FTA)。RCEP主要是以區域經濟一體化進行合作，成員國間相互開放市場、建立一個削減關稅及非關稅壁壘的自由貿易協定。其主要用意在於調和各成員國原產地規則和海關措施，並實行漸進式的服務貿易開放，同時在投資便捷化方面仍以准入後的國民待遇為主。目前RCEP於2013年5月正式談判後所成立之貿易談判委員會(Trade Negotiation Committee, TNC)，包含貨品、服務、投資、競爭政策、經濟與技術合作、法律及制度、以及智慧財產權議題等8個工作小組。
- May 10 Tue 2016 16:41
Types of wills in Spain
In accordance to Spanish Civil Code, Spanish wills may be common or special. The special ones are: military will maritime will and the will made in a foreign country. The common ones are: holographic, open and closed will.
A holographic will (testamento ológrafo) must be written entirely in the handwriting of the testator and shall be dated and signed by him or her in every page of the will. It must also be clearly drafted in order to ensure that the testator’s wishes are absolutely clear. No other formalities or witnesses are required.
On the death of the testator, it must be verified as genuine before a judge and the decedent’s handwriting is required to be authenticated by witnesses, who are the decedent’s closest relatives. Once it is verified, the judge will enforce the will’s contents.
Open will (testamento abierto) is the most common and suitable form of will for most people in Spain and it is a recorder document which contains the testator’s intentions as declared in the presence of a Notary Public. Before a Notary Public the testator shall express, orally or in writing his last will to him. The Notary may request the presence of two witnesses, who must also be required in case the testator is blind or illiterate.
- May 10 Tue 2016 16:40
Forced heirship in Spain
Firstly, it is important to note that the Spanish Civil Code recognises a quite limited testamentary freedom compared with other countries. Therefore, people closely related to the testator shall always receive a part of the estate, which is called “la legítima”. It is also possible to disinherit a child, but only in the cases explicitly enshrined in the Civil Code (such as denying maintenance, or seriously mistreated or slandered the parent or ancestor, see Articles 853 and 756).
Spain is divided in 17 different Autonomous Communities, and some of them have their local inheritance regulations. However, the following is according to the general Spanish inheritance law contained in the Civil Code.
The beneficiary of the reserved portion is called a forced heir and, according to the Article 807, the deceased’s spouse, descendants and – if there are no descendants – the parents or other ascendants of the deceased are entitled to the reserved portion. The spouse is not entitled to receive the property of the estate, but the usufruct. This way, the spouse has the exclusive right to use the property until his/her death.
In general terms, when the testator is survived by his children and spouse, the estate shall be divided in three shares:
- One third of the estate must be distributed in equal parts among the testator’s children.
- One third must go to the children and grandchildren of the deceased, but he can decide whether to distribute it in equal or non-equal parts, or only give it to some of the heirs, or just to one of them. The testator’s widow or widower has the right to receive at least a usufruct of this portion of the estate (but it is very common in testamentary dispositions to include more than this portion).
- The last third part can be disposed freely by the testator.
- May 10 Tue 2016 16:37
The Lifting of the Corporate Veil Doctrine in Spain
The most frequently used business entities in Spain are the Limited Liability Company (Sociedad de Responsabilidad Limitada) and Join Stock Company (Sociedad Anónima). In both cases, the liability is generally limited to the amount of the capital stock contributed by each of them.
Nevertheless, in exceptional cases, liability shall be sought from the shareholders in order to protect the interest of other third parties. Along with the provisions of the Corporate Enterprises Act, which is the basic legal text that regulates the different legal forms of capital companies envisaged in Spain, there is an important body of case law in the field of Corporate Law. In this context, in those exceptional circumstances where liability may be sought from shareholders to protect third parties, Spanish courts apply the Anglo-Saxon doctrine of “lifting the corporate veil”, as a reaction to misconduct by the shareholders while fraudulently sheltering behind the company’s legal personality.
As is known, under Corporate Law, a corporation is specifically referred to as a legal person, subject of rights, duties and capable of being part of contracts, owning real property and having the ability to sue and be sued. Generally, when forming a company, it offers limited liability to its shareholders, like in the case of the Spanish Limited Liability and Join Stock Company, which means that a shareholder may only lose what he has contributed as shares to the entity, and nothing more, since a registered company is a separate legal entity distinct from its shareholders, and therefore, it shall be treated as any other person with its own responsibility.
The case of Salomon V. Salomon & Co (U.K. 1897) is the foundational case and precedence for this doctrine of corporate personality.
Facts of the case: Mr Aaron Salomon was a British leader merchant who had a boot manufacturing business which he decided to incorporate into a private limited company. By 1892, Mr Salomon decided to incorporate his business as a Limited Liability Company, Salomon & Co. At that time, the legal requirement for incorporation was that at least seven persons had to subscribe as shareholders, so he designated his wife, daughter and four sons as shareholders. Two of the sons became directors and Mr Salomon himself was managing director. Mr Salomon owned 20,001 (of one pound each) shares of the 20,007 (the remaining six where shared individually between his family). Mr Salomon sold his business to the new corporation for almost 39,000 pounds, of which 10,000 was a debt to him. Thus, he was the company’s principal shareholder and creditor simultaneously.
When the company went into liquidation, the liquidator argued that the debentures used by Mr Salomon as security for the debt were invalid on the grounds of fraud, and the Judge accepted this argument, ruling that since Mr Salomon had created this company solely to transfer his business, the company was in reality his agent and he as principal was liable for debts to unsecured creditors.
- May 06 Fri 2016 16:41
The Determination of Injury in the WTO Antidumping agreement
Determination of injury consists on determining whether the dumped imports have caused material injury. It shall be based on positive evidence and involve an objective examination of:
- the volume of the dumped imports: the authorities investigating shall consider whether there has been a significant increase in dumped imports, either when it comes to absolute terms or relative to production or consumption in the importing country.
- the effect of the dumped imports on prices in the domestic market for like products: the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports in comparison with the price of the like product in the importing country.
- the consequent impact of these imports on domestic producers of such products, which shall include an evaluation of all the relevant economic factors and indices, having a bearing on the state of the industry and including actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilization of capacity, factors affecting domestic prices, etc.
Material injury: demonstration
As mentioned above, the determination of material injury must be based on positive evidence and also involve and objective examination of dumped imports. It must be demonstrated that the dumped imports are causing injury within the meaning of the Agreement. The demonstration of a causal relationship shall be based on an examination of all relevant evidence before the authorities, who shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry.
With respect to cases where injury is threatened by dumped imports, the application of anti-dumping measures shall be considered and decided with special care.
Definition of domestic industry
The authorities shall identify the domestic industry before addressing the injury issues. In general, in accordance to Article 4:
- May 04 Wed 2016 18:11
Antidumping International Agreements: WTO Antidumping agreement.
Although trade liberalization is the main goal of trade policy, and although antidumping rules are generally considered as restrictive to trade, some regulations still grant Governments power to impose anti-dumping measures when conditions are met. According to the Word Trade Organization (WTO), dumping is “a situation of international price discrimination, where the price of a product when sold in the importing country is less than the price of that product in the market of exporting country”. If it injures the domestic producers in the importing country, authorities may impose antidumping duties to offset the effects of the dumpling, since it is an unfair trade practice which keeps competitors out of a particular market.
International antidumping rules are provided by:
- Article VI of the General Agreement on Tariffs and Trade (GATT 1947).
- Agreement on Implementation of Article VI of the General Agreement on Tariff and Trade 1994 (Antidumping Agreement under the WTO), which was concluded in 1994 as a result of the Uruguay Round.
The WTO Agreement is the successor to the GATT Agreement, but provisions of Article VI are not replaced but it: Article VI is implemented and interpreted by the WTO Agreement. Since 1947 GATT, the rules of international trading system have authorized countries to establish national antidumping statutes and implement antidumping trade restrictions. Under the agreement, a national government shall undertake an investigation and consider substantial economic evidence before it can impose definitive antidumping measures that restricts imports. The investigating authority is instructed to consider different factors when making the decision, but the most important among them are whether two important legal criteria have been met: that a domestic industry suffers material injury, and that this injury is the result of dumped imports.
Taiwan filed an application for a GATT membership status in January 1990. In 1995, when the WTO was established, the application was transformed into the accession application for the WTO membership. Taiwan became the 144th member of the WTO in 2002.
Basic principles of the Antidumping agreement
The Agreement ensures that WTO members will not apply antidumping measures arbitrarily. Antidumping measures are unilateral remedies that the government of the importing country may apply after a throughout investigation has determined that the product is, in fact, being dumped, and that sales of the dumped product are causing material injury to a domestic industry that produces a like product.
WTO members can impose antidumping measures only if, after investigation in accordance with the Agreement, a determination meets the following requirements: