PME et propriété intellectuelle: Cas de Taiwan

3.2.2 The institutional map

Taiwan still has work to do on its IP structure. In international comparison, the United States, European Union and Japan are considered to have a structure more developed for IP protection than Taiwan^61(*).

Organizations involved in creation and arbitration of IP laws:

Concerning its organizational integration and coordination, the first goal of Intellectual property Bureau (IPB) is to consolidate the patent and trademark operations in the present NBS and the Copyright Commission. This bureau placed it under the MOEA, whereas the other parts of the NBS are strictly deal with issues related to national standards^62(*). Currently, six ministries and one commission have IP-related duties under the Executive Yuan, yet there have been «glitches» among their works.

The goal of MOE is to deliver an innovative, high-quality, and rapid response to the needs of business and the public, and the MOEA will serve a guiding role for business sector, develop an even more active partnership with private businesses, optimize the utilization and effectiveness of the nation's overall resources, enhance administrative efficiency, improve the domestic investment environment, and lead the economy through fair competition towards liberalization and internationalization, nourishing a vigorous private sector. The ministry will devote its efforts not only to guiding Taiwan's economy through the short-term obstacles it faces, but also to laying a solid foundation for long-term industrial growth.

This is a view about the executive branch^63(*) in Taiwan:

To ensure speedy and more effective resolution of IP disputes, Taiwan amends a number of provisions contained in the Administrative Litigation Law, Civil Procedure Law and Criminal Procedure Law.

The Administrative Court or a common court suspend an on-going litigation if the finding of another legal relationship or status is a condition precedent or determinative to the outcome of the pending case^64(*). Therefore, in a patent or trademark infringement dispute or petition, as soon as the issue of patent or trademark validity is raised (and often it is the case), the entire case is then put on hold while the issue is referred back to the NBS for determination^65(*). The court simply does has not the authority to resolve this matter de novo. It follows that delay becomes a common practice for the accused infringer, hich, if exercised skillfully, can distract and drastically prolong the litigation, causing enormous extra damages to the patent holder.

This is a view of judicial branch^66(*) which has a role of arbitration:

Legislative branch^67(*):

TIPO is a main organization involved in the registration and the enforcement of Intellectual Property Rights. Its goal is formulation of IPR enforcement policy and legislation on patent, trademark, copyright, integrated circuit layout, trade secret and other IP related affairs. This organization is specialized on examination, cancellation, administration, to resolve of IP disputes.

The Chambers of Trade play a relevant role. They help the foreign business enterprise to relocate to Taiwan in developing a variety of services such as market research, partnerships, administrative information and economic.

Again, he vote of the IP Court Organic Act of the Assembly, March 5, 2007, making after a long preparation which continued throughout 2006, endorsed the creation of a court specialized in property intellectual. This law offers hope for progress in implementing the rules of intellectual property protection in Taiwan, which remained a weak point, while the law had been brought into conformity with the TRIPS Agreement following the accession of Taiwan to the WTO in 2001. The IP Court is an appellate court, ruling in the second proceedings in civil, criminal and administrative. It will consist of 15 judges: 1 chief prosecutor, and 2 Head Prosecutors and 12 Prosecutors. In Moreover, unlike an ordinary room, it can appeal to technical experts to advise the judges.

* ⁶¹ Bruce E. O'Connor and David A. Lowe, Comparative Analysis of Intellectual Property Dispute Resolution Processes in Mainland China, Taiwan and the United States, supra note 4, at 57-132.

* ⁶² See Article 8, Amendment to the Organizational Law of the Ministry of Economic Affairs (Oct. 16, 1996).

* ⁶³ http://www.ly.gov.tw

* ⁶⁴ See Article 25, Administrative Litigation Law; Article 182, Civil Procedure Law.

* ⁶⁵ See Article 60, Trademark Law; Article 94, Patent Law.

* ⁶⁶ See 1993 Action Plan, supra note 84. Note that although Taiwan pledged to establish a specialized IP chamber or division, it had not been realized by the end of 1997. The following factors played a part: (a) the Legislative Yuan was unable to pass the statute granting authority to create such courts; (b) unlike some of the countries where IP cases tend to be filed or focused on a certain jurisdiction, cases are widely scattered across Taiwan, making consolidation efforts more difficult; (c) there are not enough judges trained specifically in the IP field; and, (d) many judges fear being pigeonholed and «stuck» in the IP area, thus affecting promotions.

* ⁶⁷ http://www.ly.gov.tw, http://www.taiwanlawresources.com