SUBMISSION OF OATH AND ASSIGNMENT DOCUMENTS

01/01/2001

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Article 22 of the Patent Law provides that when filing a patent application, an applicant must submit a written application, a specification, necessary drawings, an oath signed by the in-ventor and, where the applicant is not the in-ventor, an assignment also signed by the inventor. Article 23 of the law defines the filing date as the date when all the documents required are sub-mitted, along with the requisite fee.

In practice, there are cases where an applicant is unable to obtain the oath and assignment. The Intellectual Property Office (IPO), under the above situation allows the applicant to file the application, but requires him to make a declara-tion of his inability to obtain the oath and as-signment. He must then submit substitute documents within a period set by the IPO in or-der to maintain the original filing date.

To clarify the criterion for implementing the above practice, the IPO recently announced re-lated guidelines as follows:

The applicant must make the declaration on the same day as he files the new patent application. If the declaration is made at a later date, the date of declaration will be taken as the filing date for the application.

Where an applicant is unable to obtain the oath and assignment, the following affidavit and related evidentiary documents may be used:

1.An affidavit signed by the applicant, stating the title of invention, the basis for the ap-plicant to own the right to apply for patent, and a statement of the applicant's willing-ness to bear all legal consequences.

2.Related evidentiary documents: For exam-ple: where a corresponding patent applica-tion has already been filed in another country, documents evidencing the right to apply for such application, issued by the relevant governing authority in that country; a notarized copy of the employment con-tract and documents showing that the in-vention was made in the course of em-ployment duties.

The representative of a company, who is not the actual inventor, should not exercise the inventor's right to indicate his name, nor be named as the inventor.