Pursuant to Article 79 of the prevailing Taiwan Patent Act, an invention patentee shall mark the patent number as shown in the patent certificate on the patented article or the packaging thereof, and may request the licensee or the grantee of compulsory license to do the same. In failure to affix such marking, the patentee shall not claim damages, except in the event when the infringer could be proven by facts to have known that the article is under patent protection.
The purpose of patent marking is to encourage the patentee to give notice or warning to the public of its patented product, and to help the public to identify the patented product as well as to prevent unintentional infringement. However different courts may hold different opinions as to whether the patentee has violated the patent marking obligation. Some are of the opinion that patent marking is an obligation and a prerequisite for claiming damages in cases of patent infringement, and some are of the opinion that the claim for damages may still be based on the act of infringement even if the patentee does not have sufficient evidences to show that he has fulfilled the obligation of patent marking.
As a matter of fact, in the amendment pending examination before the Legislative Yuan, it is proposed in Article 79 of the Patent Act to clearly state that the evidences shall be produced when claiming damages even if patent marking is not affixed on the patented article. Further, the same amendment proposes that patent marking shall not be limited to be shown on the article or product only, but can also be shown on the product tag, packaging or any distinctive way which can let the public be made aware.
