Taiwan updates

Employment & Benefits

How to make a post-termination restrictive covenant for non-competition legally binding
  • Taiwan
  • 20 December 2017

A post-termination restrictive covenant for non-competition restricts an employee from joining the employer's competitor or conducting business in competition with the employer following termination of employment. The employee is usually required to provide such a covenant on being hired, making it difficult for the employee to decline. As the legality of such a covenant was controversial, when the Labour Standards Act was revised in 2016, a new article was added to regulate it.

Performance management and termination
  • Taiwan
  • 04 October 2017

An employer may terminate an employment contract with notice or payment in lieu of notice and provide the appropriate severance payment if an employee is confirmed to be incompetent to perform the work assigned to him or her. However, employers may not terminate an employment contract if the employee is on maternity leave or suffering from an occupational injury or disease while working for the employer.


Intellectual Property

Contributed by L&L-Leaven, Attorneys-at-Law
Supreme Administrative Court interprets teaching away requirements
  • Taiwan
  • 15 April 2019

The Supreme Administrative Court recently considered whether a patent lacked an inventive step due to teaching away. The disputed patent had been challenged before the Intellectual Property Office, which had rejected the appellee's invalidation action. Under Taiwan's patent examination guidelines, when determining whether a patent has an inventive step, all of the content disclosed in the prior art must be considered, including any prior art that teaches away from the applied-for invention.

Use of competitor's trademark in keyword advertising deemed non-actionable
  • Taiwan
  • 21 January 2019

The Taipei District Court recently upheld the established case law on companies' use of competitors' trademarks in keyword advertising. In general, the courts deem the use of a trademark non-actionable if it does not appear in the actual ad (ie, someone using the search terms would not assume that the ad belongs to the trademark owner). However, even if a competitor's trademark is not used in a company's ad, its use in keyword advertising might be considered a violation of the Fair Trade Act.

Important aspects of forthcoming patent linkage system regulations
  • Taiwan
  • 03 December 2018

The Taiwan Food and Drug Administration recently published a draft version of the new regulations on patent linkage for public comment. An analysis of the regulations, which set out how patent linkage will be implemented in Taiwan, reveals several aspects that will have a significant impact on patent linkage operations in the region.

Supreme Administrative Court takes stricter approach to interpretation of earlier trademark use
  • Taiwan
  • 22 October 2018

In a recent administrative litigation case regarding a trademark opposition, the Supreme Administrative Court expressed an important view on the adoption of the anti-squatting clause. Compared with previous decisions, the court took a stricter approach to the interpretation of earlier trademark use. Claimants asserting unregistered rights under this clause must demonstrate that the unregistered earlier mark was used in the ordinary course of trade and in accordance with common transaction practices.

Supreme Court clarifies foreign clinical trial periods in patent term extension applications
  • Taiwan
  • 08 October 2018

Departing from the opinion of the Intellectual Property Office, the Supreme Court recently held that the end date of foreign clinical trial periods in patent term extension applications should be the report date, not the study completion date. The court reasoned that the results of a clinical trial cannot be obtained immediately after the study is completed. Meaningful results can be obtained only after professional analysis and data processing.


Tech, Data, Telecoms & Media

Contributed by Shay & Partners
Cable TV operators battle media on demand
  • Taiwan
  • 22 March 2019

The National Communications Commission (NCC) recently authorised Chunghwa Telecom, the largest telecoms operator in Taiwan, to use aggregate channels for its media-on-demand service. Unsurprisingly, local cable TV operators have protested the NCC's one-sided decision and demanded the same liberalised regulations. While the future of cable TV in Taiwan remains uncertain, over-the-top media services such as Netflix may be the only way to resurrect pay TV businesses.

Huawei's deepening dilemma in Taiwan
  • Taiwan
  • 08 February 2019

Chinese telecoms manufacturer Huawei is under additional scrutiny following concerns that its close ties with the Chinese government present national security threats to Taiwan, the United States, Europe and allied countries. Further to the ban on Huawei's investment in Taiwan and the procurement of Huawei products for use in telecoms infrastructure, the Taiwan government is considering similar restrictions on 5G.

5G regulatory sandbox expanded
  • Taiwan
  • 23 November 2018

By the end of December 2018, the National Communications Commission (NCC) will expand the 5G regulatory sandbox in order to inspire experimental 5G applications and prepare Taiwan for the upcoming release of 5G spectrum for commercial use in 2020. The NCC confirmed that the 3.4GHz to 3.6GHz and 28GHz bands are available for release via spectrum auctions, while further public comments are required regarding the 1,700MHz to 1,900MHz, 2,010MHz to 2,025MHz and 2,355MHz to 2,390MHz bands.

NCC responds to public consultation on 5G spectrum planning
  • Taiwan
  • 05 September 2018

The National Communications Commission (NCC) recently responded to comments from mobile network operators and equipment suppliers in a public consultation on 5G spectrum planning and auction preparation. The NCC confirmed that, in addition to the 3.4GHz to 3.6GHz bands, the 28GHz, 1,700MHz to 1,900MHz and 700MHz to 800MHz bands are expected to be released for 5G use and will likely be made available through spectrum auctions.

NCC invites public comments on 5G spectrum planning
  • Taiwan
  • 20 June 2018

The National Communications Commission (NCC) has initiated a public consultation on 5G spectrum planning and auction preparation. Industry stakeholders and interested parties are invited to give comments in written form by 29 June 2018. NCC Chair Nicole Chan stated that the commission will be submitting its final analysis of the public consultation to the Executive Yuan in July 2018. The premier will then issue a further decision on 5G spectrum.