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| The first to file rule between a product invention and a method invention |
2008-05-14 |
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FILE:
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Supreme Court Case No. 2005 Hu 3017 on January 12, 2007
Issue
What is the same invention under Article 36 of the Patent Act? The article stipulates the first to file rule.
Article 36
(1) Where two or more applications relating to the same invention are filed on different dates, only the applicant of the application having the earlier filing date may obtain a patent for the invention.
Holding
When two applications compete for the priority in filing dates, the claimed inventions are the same. To judge whether two inventions are identical to each other, the real substance of two inventions shall be examined, even though two inventions are claimed as a product invention and a method invention respectively. Therefore, different categories of claimed inventions shall not be decisive in determining the sameness of inventions.
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