標示專利證書號的效果 The effect to mark the serial number of patent certificate / Patent Attorney Jerome Lin |Patent Engineer Meng-Xuan Lin
When such patent is granted, the Patent Authority shall mark the serial number of patent certificate on his/her patented article. Such serial number of patent certificate would be marked on products for declaration and advertisement purposes. On the other hand, it is to declare the public that such product has its patent right, the patentee of a utility model shall have the exclusive right to preclude other persons from manufacturing, offering for sale, selling, using, or importing for such purposes such patented products without his/her prior consent. In addition, the general public believes that if such products have its patent right; it generally means that such product has its standard quality. This is another way of advertisement. Therefore question arises as to whether to mark the serial number of patent on his/her patented article is considered as its right or obligation, every country has its own different interpretations.
United States Patent Law Article 287 indicates that the patent label is considered as patentee’s patent right and has grounds to seek for compensation for its damages. Japan Patent Law Article 187 only indicates that a patentee, exclusive licensee or non-exclusive licensee shall make efforts to place a mark to indicate that the product or process is patented. United Kingdom Patent Act Article 62, Paragraph 1 and Australian Patent Law Article 187 indicates that in proceedings for infringement of a patent damages shall not be awarded, and no order shall be made against a defendant or defender who proves that at the date of the infringement has was not ware, and had no reasonable grounds of supposing, that the patent existed. China Patent Law Article 17, Paragraph 2 indicates that “an inventor or designer shall have the right to state in the patent documents that he/she is the inventor or designer. The patentee shall have the right to have his patent mark displayed on the patented products or the package of such products.” Therefore, the trademark mark is considered as patentee’s right but not obligation.
According to Taiwan’s Patent Act Article 98, an invention patentee shall mark the serial number of patent certificate on his/her patented article or the packaging thereof, unless the item is too small or with odd shapes that it is not feasible to mark the serial number of patent certificate. In case of failure to affix such marking, no claim for damages shall be allowed, except in the case that the infringer has known, or should have known as proved by facts, the existence of the patent.
From the above, we can know to mark the serial number of patent certificate is not considered obligatory and shall not claim for damages. Whether prior to filing, such a patent application has become known to the public, in order to prevent restraining its claim for damages, there is no burden of proof on the plaintiff where an invalidation action instituted involves the trial proceedings. This is to promote an invention patentee to mark the serial number of patent certificate on his/her patented article or the packaging thereof. Even though the Patent Authority would publish our granted patent in the Patent Gazette, however people in public wouldn’t read such Patent Gazette on regular basis, nor may necessarily understand its patent specification’s format and the claims and the drawings of the application. By marking the serial number of patent would make it easier for the public to understand the technical field of its patent.
 專利法逐條釋義第314頁。Trademark Act Interpretation, page 314.
專利法第98條 (Trademark Act Article 98)
專利法逐條釋義(Trademark Act Interpretation)
經濟部智慧財產局(Intellectual Property Office) https://www.tipo.gov.tw/mp.asp?mp=1
與貿易有關之智慧財產權協定(Agreement on Trade-Relted Aspects of Intellectual Property Rights,TRIPS)
專利實務論第6版 冷耀世編著Patent Practice, 6th edition by Yao-Shi Leng.
專利法案例式 修訂第五版 林洲富著Patent Law Cases, 5th edition by Chau-Fu Ling.