眾律國際法律事務所

　　接續前篇的討論，關於舉發事由與核駁理由的共通部分，則包含有：

　　專利法第21條至第24條分別為適格性、專利要件、擬制喪失新穎性及法定排除標的的相關規定；第26條為說明書須明確且充分揭露並可據以實現；第31條為先申請原則；第32條第1項、第3項為一案兩請之相關規定；第34條第4項、第43條第2項、第44條第2項、第3項及第108條第3項分別為分割案、修正、補正之中文本、中文本之誤譯訂正及改請案，不得超出原申請案申請時說明書、申請專利範圍或圖式及外文本所揭露範圍之相關規定。

　　由於共通部分所引用的法條與事實基礎並無不同，因此理論上應只存在審查時間點上的差異。但專利法第71條第3項另外規定：「發明專利權得提起舉發之情事，依其核准審定時之規定。但以違反第34條第4項、第43條第2項、第67條第2項、第4項或第108條第3項規定之情事，提起舉發者，依舉發時之規定。」

　　因此，若發明專利申請案係經修正或誤譯訂正後才核准，或於核准後曾進行更正，則於舉發階段時，可能會因法規的改變而面臨與審查階段不同的審查標準。

　　關於專利法第71條第1項第2款規定舉發事由：「二、專利權人所屬國定對中華民國國民申請專利不予受理者。」

　　由於專利法另於第4條規定：

　　「外國人所屬之國家與中華民國如未共同參加保護專利之國際條約或無相互保護專利之條約、協定或由團體、機構互訂經主管機關核准保護專利之協議，或對中華民國國民申請專利，不予受理者，其專利申請，得不予受理。」

　　接續前篇的討論，就發明專利而言，我國專利法第71條，規定：

　　「發明專利權有下列情事之一，任何人得向專利專責機關提起舉發：

　　一、違反第21條至第24條、第26條、第31條、第32條第1項、第3項、第34條第4項、第43條第2項、第44條第2項、第3項、第67條第2項至第4項或第108條第3項規定者。

　　二、專利權人所屬國家對中華民國國民申請專利不予受理者。

　　三、違反第12條第1項規定或發明專利權人為非發明專利申請權人。

　　以前項第3款提起舉發者，限於利害關係人始得為之。

　　發明專利權得提起舉發之情事，依其核准審定時之規定。但以違反第34條第4項、第43條第2項、第67條第2項、第4項或第108條第3項規定之情事，提起舉發者，依舉發時之規定。」

　　對於發明專利申請案之核駁事由，專利法第46條規定：

　　發明、新型及設計專利申請案一經核准公告，即取得專利權而發生排他之效力。為了調和專權人與公眾之利益，專利法設立了「舉發」制度，以公眾之力輔助專利專責機關就已公告核准的專利案，再次予以審查，使專利權之授予更臻正確。此外，舉發之提起常源於專利侵權之糾紛，當事人得藉舉發程序請求撤銷專利權，以避免專利侵權訴訟。

　　雖然都是為了確立專利權的正確性，但審查階段之審查係由申請人提出實體審查的請求後，由專利專責機關進行審查；舉發之審查，則是由公眾針對已核准公告之專利案提出申請，並檢附聲明、理由與證據，交由專利專責機關進審查。兩者之適用法條及事由仍存在部分差異，以下分別進行討論。

　　首先，就法條內容比較如下：

　　我國專利法關於可提起舉發事由之相規定有第57條、第71條、第119條及第141條。其中第57條係關於延長發明專利權期間之舉發，第71條、第119條及第141條分別為發明專利、新型專利與設計專利之舉發。

　　專利法中對於「應為不予專利之審定」的相關規定則有第46條、第120條及第134條，分別對應於發明專利申請案、新型專利申請案及設計專利申請案。

　　其中，依專利法第57條所提起的舉發，由於並非針對發明專利本身是否應取得專利權所進行的舉發，其事由與是否核駁無關，不在本文討論範圍中。

　　此外，新型專利申請案之審查為形式審查而非實質審查，因此其不予專利之理由與舉發之事由差異較大，暫時不在本文中討論。

　　因此，本文討論的重點將集中在發明專利與設計專利的舉發事由與應為不予專利審定事由上的差異與比較。

When ending a contract, there are always questions regarding to contract termination. There are circumstances where an innocent party will be able to terminate a contract in the following situations:

I. In order to validly terminate a contract, terminating party must show either test of essentiality, proving that one party would not have entered the contract unless he/she assured of a strict or substantial performance of the term and the other party knows or ought to know such contract term.[1]

II. There is sufficiently serious breach of an inessential term.[2]

III. Repudiation by the other party to the contract, either express, implied or by conduct that indicates a refusal to perform the contract.[3] This is where the other party indicated clearly an inability to perform.[4] Nevertheless, such inability or refusal to perform must relate to the contract as a whole, or to an essential term of the contract.[5]

Prior to discharge by termination, you need to systematically apply whether each breach was essential or inessential or repudiation. It is also important to consider if time of essence and the prerequisite of termination.

If there is an anticipatory breach of contract, to be able to terminate the contract, the innocent party would only need to show that the other party were not wholly and finally disabled from performing the contract.[6] However such repudiation does not amount to anticipatory breach unless the innocent party seeks to terminate the contract.[7] Nevertheless, once the due date for performance arrives, all rights for the anticipatory breach would be gone.[8] Please note however a contract will not automatically terminate itself; it must be terminated by one of the parties.[9]

IV. Such contract can also be terminated by delay in performance of an agreement. This is where a party may be able to terminate the contract by breach of a term of the contract or for repudiation. If time is of essence, failure to perform in due time will be considered as breach of an essential term of the contract. This would allow an innocent party to terminate the contract accordingly. Nevertheless, the innocent party has the right to choose whether to terminate or to affirm the contract. If time is not of essence of the agreement, such termination is only possible where a notice making time of essence has been served to the party and the other party fails to comply with the notice.

There are a few questions to be considered whether such time is considered as essential in the contract. Timely performance will be of essence where the surrounding circumstances or subjects make it imperative that the agreed dated being precisely observed.[10]

In circumstances when it comes to land contract, payment of deposit would be considered as prima facie essential due to its special characteristics as an earnest of performance.[11] Therefore failure to pay such deposit would be considered as a breach of an essential term entitling the innocent party to terminate the contract.

If such time is not considered as essential, failure to perform will merely be a breach of an inessential term of the contract. Before an innocent party can terminate the contract, they must serve a notice to complete on the party in breach. Such notice should provide the other party in breach reasonable time to perform the obligations before the innocent party is able to terminate the contract.

R v Wardle is a case of verdict insupportable or unreasonable having regarding to evidence.

1. Jurisdiction and Relevant source of evidence law.

The Evidence Act 1995 (Cth) (CEA), Evidence Act 1977 (Qld) (QEA) and the Criminal Code 1899 (Qld) (Code) apply to cases dealing with grievous bodily harm (GBH) in Queensland. Common law will supplement the QEA. This court experience was invaluable for observing the rules of evidence in real life and seeing how legal practitioners apply these in court.

2. Main Facts in Issue and the Legal and Evidential Burdens of Proof.

The Crown has the legal burden of proving the offence beyond reasonable doubt (Woolmington)[1] and the evidential burden to tender evidence. If Counsel for the Defence (Defence) adduces evidence of an excuse, or is able to raise a defence on the balance of probabilities, the Crown must negate it beyond a reasonable doubt. In this case, the burden of proof lies with the prosecution to prove pursuant to s320 of the Code that Wardle did GBH and did so unlawfully. The jury must then satisfy itself beyond a reasonable doubt that the prosecution has proven all the elements of GBH and to draw inference and deduction with a reasonable conclusion as to whether the accused was guilty or not guilty.

Despite the fact that the Defence tried to adduce evidence that alleged GBH was negated by accident pursuant to s23 (1)(b) of the Code. The issue here is whether the accused did that GBH and that doing was unlawful. It was not the question of whether the complaint suffered GBH but what matters was the accused’s doing. The prosecution must negate the defence of accident, as it has the burden of negating the existence of authority, justification or excuse (Mullen).[2]

3. Role of the Judge/s and Counsel [including unrepresented parties] in calling and questioning the witness/es.

The Crown has an ethical duty to call his own “material” witnesses (Annewetey).[3] The trial process includes examination in chief by the Crown, cross-examination by the Defence and re-examination of witness by the Crown (Apostilides).[4] Here, the jury is the ultimate arbiter of fact but the judge controls what fact they are allowed to hear. The rules under which the judge does so called ‘the laws of evidence’.  The function of the judge is to direct the jury on points of law and to ensure that they are not to mislead by inadmissible evidence. The judge alone determines what evidence to accept, how important any evidence is and what conclusions to draw from all the evidence. Juries must then apply the law given to them to decide whether the accused was guilty of this charge. This statutory expression is found under s620 of the Code.

4. Any objections taken, Judicial Rulings thereupon and reformulations [outline any important objectionable questions/answers you identified even if no objection taken].

During the cross-examination, the Crown can ask leading questions in compliance with the rules in Brown v Dunn[5] to try to contradict the defence witnesses’ evidence-in-chief. In one witness’ evidence-in-chief, Judge Farr interrupted the Crown to suggest the line of questioning was irrelevant as there was not an issue of what the witness was wearing at that incident. His Honour suggested Council move on to the next question. That was the only objection taken for the whole trial.

1. Decision [if reserved give your own brief assessment of the just outcome].

Not guilty. The issue was whether the accused did the GBH alleged and that doing was unlawful. It was not a question of whether the complaint suffered GBH. But what matters was the accused’s doing. In absence of jury, defence submitted defences/excuses such as trespass, self-defence and accident. His Honour did not see any grounds for self-defence or trespass, but allowed the excuse of accident to be left to the jury.

2. Any issues of Competence or Compellability.

The general rule is that everybody is both a competent (s9 QEA) and compellable witness (Hoskyn)[1] which was sworn under oath when they understood that the giving evidence was a serious matter and were under obligation to tell truth, over and above ordinary duty (s9B(2) QEA). The witnesses were all adults who either knew the accused or had lived or visited the house where the alleged offence occurred. Wardle, the accused, was competent but not compellable in his defence (s8(1) QEA), however he voluntarily wanted to testify himself. The Crown was not competent or compellable to testify (Payne).[2] This was the most interesting part in trial was when the Crown cross-examined the accused Wardle on his credit worthiness to testify himself in court. The tactic behind was to prove prior inconsistent statement to what Wardle has testified himself in the current trial.

3. Relevant Exclusionary Rules [e.g. Hearsay, Character or Opinion].

Exclusionary evidence is evidence, which, by law, is not allowed in a criminal prosecution even though there may be no claims against its authenticity (Murphy).[3] Opinion evidence in general is not admissible (s76 CEA). Witnesses must give a plain account of the actual perception (through their five senses) that is devoid of evaluation, inference, interpretation, belief or opinion. However expert witness, being experts in a particular field, may express opinions upon relevant matters within the field of expertise. This is an exception to the general rule that a witness may speak only as to facts (s79 of CEA). The condition for admissibility of expert opinion evidence is that the evidence given must be within the expert’s field of specialised knowledge. There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached (Makita).[4]

In this trial, Doctor Lyne, as an orthopaedic surgeon, who has specialised his training in hip and knee replacement since 1966, provided his expert opinion about the incident. In his opinion, if a person is being pushed from the edge of a distance between half to two meters that would certainly cause GBH to the victim. If someone is over weight (the victim weighted around 87-88kgs), then it is more likely to fracture then falling from the height. Significant force such as falling from the edge of the hill could also cause GBH. This evidence has been ruled in as juries and judge would require expert assistance to draw correct inferences of whether the accused is guilty of the GBH offence (Clark v Ryan).[5]

Character evidence is admissible in a criminal trial if offered by a defendant as circumstantial evidence, through reputation or opinion evidence as long as the character evidence the defendant seek was relevant to this trial (s 110 CEA; Sherrard v Jacob[6]). Despite the character evidence was not directly connected to this case at hand but by Mr Jeffery Wayne’s testimony, have been friends with the defence for 15 years, doing all the family activities together, has proven accused’s positive character.

4. Judicial discretion.

The power of a judge is to exercise a personal notion of fairness, guided by principles and rules of law. An exercise of judicial discretion does not involve the application of a strict rule of law but involved the weighing of various competing factors and making a determination according to what was fair, just or otherwise be part of the admissible evidence (Hasler).[7]

The functions of judge and jury:

Judge: The judge decides as a matter of law what evidence they will consider in coming to a decision.

Jury: is the ultimate ‘tribunal of fact’ and the function of the judge is to direct them on points of law and to ensure that they are not misled by inadmissible evidence. This process finds statutory expression in Queensland under the Criminal Code s620.

In practice, the line between these two functions can become somewhat blurred. For example, in deciding as a question of law whether or not a confession is admissible, a judge may be required to consider conflicting factual allegations as to how it was obtained and choose which facts to believe. This will normally be done out of the hearing of the jury in a process known as a voir dire.

If that confession is then admitted, Defence Counsel can re-raise before the jury all the factual disputes raised on the voir dire and invite the jury to conclude that the confession was involuntary, which is in essence a question of law. By the same process Defence Counsel can also severely reduce the amount of weight that the jury will attach to the confession.

The jury is the ultimate arbiter of fact but the judge controls what facts they are allowed to hear. The rules under which the judge does so are called ‘the laws of evidence’.

Types and Classifications of Evidence:

Oral Evidence: verbal testimony of a witness in court. That witness will, ideally, be speaking to something that they perceived with their own senses (sight, sound, smell etc), and if they seek instead to relate what someone else perceived and then communicated to them, then their testimony may well be rejected as hearsay. In some cases, although the witness is required to enter the witness box and answer questions, the importance of their evidence lies not in what they perceived but in the assistance that they are able to give to the court in interpreting facts spoken to by others, or objects connected with the matter under investigation.

Direct evidence: witness X states that they saw A hit B, then in an assault trial this is direct evidence. ‘Direct’ evidence is evidence that leads directly to the proof of a fact in issue.

生物材料寄存日的認定，為生物材料寄存辦法第2條所規定之寄存申請書、生物材料之基本資料以及必要數量的生物材料樣品送達寄存機關之日，若有委任書或輸入許可證明，則亦須在其送達寄存機關後，始可認定為寄存日。寄存規費是否送達雖不會影響寄存日的認定，但寄存機構會待上述申請資料以及規費皆送達後，始進行存活試驗，並於存活試驗完成並確認該生物材料可存活後，才開具寄存證明書。

若寄存人提供的生物材料樣品，在寄存機構進行存活試驗後無法生存，寄存機構將開具無法存活之報告，寄存人須另案提出寄存申請，並重新檢送存活之樣品。除非該生物材料樣品無法存活之原因，為不可歸咎於寄存當事人之事由(註[1])，例如樣品於海關檢疫中遭受汙染，或是因寄存機構之技術問題而致使無法存活者。惟上述情況並不容易舉證，其中一種舉證方式為提出該生物材料在其他國家寄存並未發生無法存活的狀況，使審查委員接受該生物材料無法存活之原因為不可歸責於寄存當事人之事由，始可補寄存。

為確保專利申請人申請生物材料或利用生物材料之發明時，可符合專利法第27條之規定「專利申請人最遲須於專利申請日將該生物材料寄存於專利專責機關指定之寄存機構，並且於專利申請日後四個月內檢送寄存證明文件。」專利申請人應儘早向寄存機構提出寄存申請，以確保所取得的寄存日以及寄存證明書可在規定期限內檢送，以避免產生不利專利申請的後果。

關鍵字；生物材料、寄存機構、寄存程序

註：

生物材料寄存人向專利專責機構指定之國內寄存機構，即財團法人食品工業發展研究所，提出寄存申請時，須繳納規費，所須繳納的規費依生物材料的種類不同而有所差異(註[1]註[2])：

In this article, we will advise you on the steps to be taken and costs involved to set up and to register a company. We will also give advice about your legal obligations as a company director and company officers.

Steps to incorporate a company:

There are a few things for you to consider before incorporating a company. This include whether a company is the right business structure, choosing a company name, decide how the company operate, understanding the legal obligation of a company and its officeholders, gathering consent of persons involved in the company before registering a company.

At this stage, you should make sure that you have fully understand what your legal obligations will be if you become a company officeholder. Once you register your company in Australia with the Australian Securities and Investments Commission (ASIC), your company can conduct business throughout Australia without the need to register in individual states and territories (s117 Corporations Act 2001). However please note that your registered business name would not be the same as registering a company. Registration or use of a business name does not create a legal entity (only when registering a company) or allow the use of privileges to which a company is entitled.

Reserving your company name:

It is common practice for someone to register their business as Pty Ltd. The word ‘Pty Ltd’ is the abbreviation of ‘Proprietary Limited’. This means that the liability of the company’s members is limited to the amount unpaid on their shares. A company would come into existence at the beginning of the day on which it is registered (s119 Corporations Act 2001) until it is deregistered (Chapter 5A Corporations Act 2001).

It is important to check your business name availability and to see whether your chosen business name has been previously registered. By doing so, you would need to check if your proposed business name is similar or identical to any other registered business or pending trademarks through the ‘check the IP Australia website’.  This is because even if you reserve or register a name for your company, person or corporation with similar registered name may still take action against you. Therefore to prevent this, it is your responsibility to be aware of any problems that might arise for your business name to be similar or likely to confuse from names already registered elsewhere.

Please note it is not necessary for you to give your company a name. You can use your Australian Company Number (ACN) as the name of your company name instead (s118 Corporations Act 2001).

In addition, you can reserve your business name by using form 410. This is to make sure that another person would not take your intended business company name before you register its business name. Once the ASIC approve your company name, they will reserve the name for you for two months. You may however apply to extend the two-month period by lodging another application with a fee. The second application must be lodged before the first two-month reservation period has elapsed. However ASIC would not indefinitely reserve a company name if that prevents other people to use the company name legitimately.

Internal Governance: