眾律國際法律事務所

　　根據中國專利法第33條的規定，「申請人可以對其專利申請文件進行修改，但是，對發明和實用新型專利申請文件的修改不得超出原說明書和權利要求書記載的範圍」。依照字面上的解釋，只要是出現在申請時的說明書揭露的內容，皆可在修正時增加在申請專利範圍中。

　　至於中國專利申請案的修正時機，主要可以區分為兩個大類。第一大類如中國專利法實施細則第51條第1款所述，「發明專利申請人在提出實質審查請求時以及在收到國務院專利行政部門發出的發明專利申請進入實質審查階段通知書之日起的3 個月內，可以對發明專利申請主動提出修改」。

　　第二大類則是如中國專利法實施細則第51條第3款所述，「申請人在收到國務院專利行政部門發出的審查意見通知書後對專利申請文件進行修改的，應當針對通知書指出的缺陷進行修改」。

　　換言之，申請人對申請案提出修正的時機主要包括：1.提出實質審查的階段；2.收到審查意見的階段。當然不管在那個時間點提出的修正，都必須符合中國專利法第33條的規定。另外在收到審查意見通知書後，對申請案的內容所提出的修正，還必須符合「針對通知書指出的缺陷進行修改」的規定。

　　中國專利審查指南第一部分第二章的8.2規定了，對於申請人提交的包含有並非針對通知書所指出的缺陷進行修改的修改檔，如果其修改符合專利法第33條的規定，並消除了原申請文件存在的缺陷，且具有授權的前景，則該修改可以被視為是針對通知書指出的缺陷進行的修改，經此修改的申請文件應當予以接受。對於不符合專利法實施細則第51條第3款規定的修改文本，審查員可以發出通知書，通知申請人該修改文本不予接受，並說明理由，要求申請人在指定期限內提交符合專利法實施細則第51條第3款規定的修改文本，同時應當指出，如果申請人再次提交的修改文本仍然不符合專利法實施細則第51條第3款的規定，審查員將針對修改前的文本繼續審查，例如作出授權或駁回決定。

專利專案經理　蕭錫裕

關鍵字：1.修正；2.修改；3.針對通知書指出的缺陷

隨著近年產業上開始著重智慧型裝置的應用以及整合，因應而生如何對各種app、軟體進行智慧財產權的保護也益發重要。筆者將會以系列文章討論台灣、中國、美國及歐洲現行對軟體專利的申請及保護，拋磚引玉希冀能夠邀請從業人事互相切磋討論。

首先軟體的智慧財產權保護可以粗分成程式碼（著作權）以及本身的核心概念（專利權）兩個不同的客體。前者不須進行申請，後者則為本文討論的核心。進一步而言，專利申請的標的則可分為物之標的以及方法標的。

足跡遍佈全球的眾律，今日韓國Hanbyol專利法律事務所Kay Kim, Patent Attorney  來訪本所，討論台灣、韓國專利制度與國際專利趨勢，會後互換台韓點心。

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:

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:

1. 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.

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.

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: 

1. Descending direct line.
2. Ascending direct line.
3. Spouse.
4. Collateral relatives
5. 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.

1. 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.
2. 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.
3. 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.
4. 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.  
5. 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.

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.

Holographic 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

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.