Recently, the State Council issued the 'Decision of the State Council on Amending the Implementation Rules of the Patent Law of the People's Republic of China' (the full text of the rules can be found in the 15th and 16th editions of this newspaper), which took effect on February 1, 2010. The relevant contents are as follows:

1. Any entity or individual that intends to file a patent application abroad for an invention or utility model completed in China shall, in advance, submit to the patent administrative department of the State Council for confidentiality review.

2. There are three ways to undergo confidentiality review:
1) For those preparing to file a patent application directly abroad (filing directly abroad or submitting an international patent application to relevant foreign institutions), they shall submit a request to the patent administrative department of the State Council in advance, with a detailed description of their technical solution;
2) For those filing a Chinese patent application (intending to file abroad or submit an international application after obtaining a patent from the patent administrative department of the State Council), they shall submit the request to the patent administrative department of the State Council before filing abroad or submitting the international application;
3) For those submitting an international patent application (to the patent administrative department of the State Council), this is considered as simultaneously submitting a confidentiality review request.

3. For inventions or utility models filed abroad in violation of the above provisions, no patent rights shall be granted if a patent application is filed in China. This provision serves as both a ground for rejection and a ground for invalidation. This means that even if the patent office does not detect this during examination, competitors can still invalidate the patent after granting based on this provision.
This measure has indeed had a certain impact on the patent application strategies of Taiwanese clients. Previously, Taiwanese businesses would use the method of first filing patent applications in other countries and then claiming priority in Taiwan to gain an advantage, but this approach is now blocked due to delays in the confidentiality review process. Therefore, applicants need to decide whether to file abroad at least six months in advance to avoid missing the opportunity. Currently, the Patent Law stipulates that filing an international patent application (PCT) is considered as simultaneously submitting a confidentiality review request, meaning that the confidentiality review request at this time is not a separate procedure, and the review time will be expedited. However, using PCT applications to expedite the review process is not entirely applicable to filing Taiwan patents, because when filing a PCT application in China, China will inevitably be the first application country, and any third country will be a subsequent priority application country. However, Taiwan's intellectual property laws stipulate that Taiwan only recognizes the priority of the first PCT application country (and China is excluded from the scope of recognition). Therefore, if filing a PCT application only to save time on confidentiality review but fails to obtain priority, it would be counterproductive.

In summary, according to whether clients ultimately plan to file a patent application in China, under the current legal framework, the following three options are available for reference:

1. If clients ultimately do not intend to enter the Chinese market, they can file directly in Taiwan without initiating the confidentiality review procedure. The consequence of violating this procedure is that they cannot obtain Chinese patent rights. Clients should evaluate this risk in advance.
2. If clients ultimately plan to file a patent application in China, the approach of first obtaining patent rights in China and then filing in Taiwan is efficient and feasible. This approach offers some advantages in coordinating the confidentiality review procedure and document preparation, manifested in the fact that detailed technical solution documents are not required for confidentiality review materials, and the coordination of the entire process from Chinese patent application to confidentiality review to Taiwan patent application will be smoother and more time-efficient, resulting in an earlier patent application date.
3. If clients urgently need to obtain Taiwan patent rights, the only option is to file directly in Taiwan while separately initiating the confidentiality review (with detailed technical solution explanation). Regarding the response from the patent department: the confidentiality review takes an average of about one to two months. If no problems are found at the preliminary confidentiality review stage, the review concludes. Compared to the previous estimate of 4-6 months, the time has been significantly shortened.