SpecCom_IP-Code.docx

INTELLECTUAL PROPERTY CODEA. Intellectual Property Rights in General Intellectual Property Rights Copyright and Related Rights Mark (trade, service and collective) Geographic indications Industrial designs Patents Layout designs(Topographies) of Integrated Circuits Protection of Undisclosed Information Differences between Copyrights, Trademarks and Patent

Technology Transfer Arrangements Contracts or arrangements involving the transfer of systematic knowledge for the manufacture of a product, the application of the process, or rendering a service including management contracts, and transfer, assignment or licensing of all forms of intellectual property rights, including licensing of computer software except computer software developed for mass market. (Sec. 4.2, IPC)

B. Patents statutory grant which confers to an inventor or his legal successor, in return for the disclosure of the invention to the public, the right for a limited period of time to exclude others from making, using, selling or importing the invention within the territory of the country that grants the patent.a. Patentable InventionsAny technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing. (Sec. 21)b. Non-Patentable Inventionsa. Discoveries, scientific theories and mathematical methodsb. In the case of Drugs and medicines, mere discovery of a new form or new property of a known substance which does not result in the enhancement of the efficacy of that substancec. Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computersd. Methods for treatment of the human or Animal bodye. Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to microorganisms and nonbiological and microbiological processesf. Aesthetic creationsg. Anything which is contrary to public order or morality. (Sec. 22, IPC as amended by R.A. 9502)c. Ownership of a Patenta. Right to a Patent Inventor, his heirs, or assigns. Joint invention Jointly by the inventors. (Sec. 28, IPC) 2 or more persons invented separately and independently of each other To the person who filed an application; 2 or more applications are filed the applicant who has the earliest filing date or, the earliest priority date. First to file rule. (Sec. 29, IPC) Inventions created pursuant to a commission Person who commissions the work, unless otherwise provided in the contract. (Sec. 30.1, IPC) Employee made the invention in the course of his employment contract: The employee, if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer. The employer, if the invention is the result of the performance of his regularlyassigned duties, unless there is an agreement, express or implied, to the contrary. (Sec. 30.2, IPC)b. First-to-File Rule If two (2) or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention, or Where two or more applications are filed for the same invention, to the applicant whi has the earliest filing date. (Sec. 29, IPC)c. Right of Priority An application for patent filed by any person who has previously applied for the same invention in another country which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered as filed as of the date of filing the foreign application. (Sec. 31, IPC)d. Grounds for Cancellation of a Patent The invention is Not new or patentable; The patent does not Disclose the invention in a manner sufficiently clear and complete for it to be carried out by any person skilled in the art; or Contrary to public order or morality.(Sec. 61.1, IPC) Patent is found Invalid in an action for infringement (Sec. 82, IPC)e. Remedy of the True and Actual Inventor He may only ask the court to substitute him as a patentee or to cancel the patent and ask for damages when the application of the false inventor is granted. He may not the IPO of processing the false application.f. Rights Conferred by a Patenta. Subject matter is a product Right to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing the product.b. Subject matter is a process Right to restrain prohibit and prevent any unauthorized person or entity from manufacturing, dealing in, using, offering for sale, selling or importing any product obtained directly or indirectly from such process (Sec. 71, IPC).c. Right to assign the patent, to transfer by succession, and to conclude licensing contracts. (Sec. 71.2, IPC)g. Limitations of Patent Rightsa. Prior User GR: If put on the market in the Philippines by the owner of the product, or with his express consent. XPN: Drugs and medicines introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention (Sec. 72.1, as amended by R.A. 9502) Where the act is done privately and on a noncommercial scale or for a noncommercial purpose. (Sec. 72.2, IPC) Exclusively for experimental use of the invention for scientific purposes or educational purposes (experimental use provision). (Sec. 72.3, IPC) Bolar Provision In the case of drugs and medicines, where the aact includes testing, using, making or selling the invention including any data related thereto, solely for purposes reasonably related to the development and submission of information and issuance of approvals by government regulatory agencies required under any law of the Philippines or of another country that regulates the manufacture, construction, use or sale of any product.(Sec. 72.4, IPC) Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance with a medical prescription. (Sec. 72.5, IPC) Where the invention is used in any ship, vessel, aircraft, or land vehicle of any other country entering the territory of the Philippines temporarily or accidentally. (Sec. 72.5, IPC) Reverse reciprocity of foreign law Any condition, restriction, limitation, diminution, requirement, penalty or any similar burden imposed by the law of a foreign country on a Philippine national seeking protection of intellectual property rights in that country, shall reciprocally be enforceable upon nationals of said country, within Philippine jurisdiction. (Sec. 231, IPC) Prior user Person other than the applicant, who in good faith, started using the invention in the Philippines, or undertaken serious preparations to use the same, before the filing date or priority date of the application shall have the right to continue the use thereof, but this right shall only be transferred or assigned further with his enterprise or business. (Sec. 73, IPC) Use by Government A government agency or third person authorized by the government may exploit invention even without agreement of a patent owner where:a. Public interest, as determined by the appropriate agency of the government, so requires; or b. A judicial or administrative body has determined that the manner of exploitation by owner of patent is anticompetitive. (Sec. 74, IPC)h. Patent Infringement Making, using, offering for sale, selling or importing a patented product or a product obtained directly or indirectly from a patented process; or Use of a patented process without authorization of the owner of the patent (Sec. 76, IPC)a. Tests in Patent Infringement Literal Infringement Resort must be had, in the first instance, to words of the claim. If the accused matter clearly falls within the claim, infringement is committed. Minor modifications are sufficient to put the item beyond literal infringement. (Godines v. CA, G.R. No. L97343, Sept. 13, 1993) Doctrine of Equivalents There is infringement where a device appropriates a prior invention by incorporating its innovative concept and, although with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result.b. Defenses in Action for Infringement Invalidity of the patent; (Sec. 81, IPC); Any of the grounds for cancellation of patents: That what is claimed as the invention is not new or patentable That the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by any person skilled in the art; or That the patent is contrary to public order or morality. (Sec. 61, IPC)

i. Licensinga. VoluntaryThe grant by the patent owner to a third person of the right to exploit a patented invention.b. CompulsoryThe Director of Legal Affairs may grant a license to exploit a patented invention, even without the agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention, under any of the following circumstances: National emergency or other circumstances of extreme urgency Where the public interest, in particular, national security, nutrition, health or the development of other vital sectors of the national economy as determined by the appropriate agency of the Government, so requires; or Where a judicial or administrative body has determined that the manner of exploitation by the owner of the patent or his licensee is anti-competitive; or In case of public non-commercial use of the patent by the patentee, without satisfactory reason; If the patented invention is not being worked in the Philippines on a commercial scale, although capable of being worked, without satisfactory reason: Provided, That the importation of the patented article shall constitute working or using the patent. (Secs. 34, 34-A, 34-B, R.A. No. 165a)j. Assignment and Transmission of Right Total assignment of entire right, title or interest in and to the patent and the invention covered thereby. Partial Separate rights assignment of a specific right (ex: right to sell)b. Pro Indiviso assignment of an aliquot part which results in coownership

C. Trademarks Definition of Marks, Collective Marks, Trade Names A mark is any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise. A trade name is a name or designation identifying or distinguishing an enterprise. A "collective mark" or collective tradename" is a mark or tradename used by the members of a cooperative, an association or other collective group or organization. (Sec. 40, R.A. 166)

Acquisition of Ownership of Mark Marks are acquired solely through registration. (Sec. 122, IPC) Acquisition of Ownership of Trade Name Trade names or business names are acquired through adoption and use. Registration is not required. (Sec. 165, IPC) Non-Registrable Marks Consists of immoral, deceptive or scandalous matter or falsely suggest a connection with persons, institutions, beliefs, or national symbols Consists of the flag or coat of arms or other insignia of the Philippines or any of its political subdivisions, or of any foreign nation Consists of a name, portrait or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the Philippines, during the life of his widow except by written consent of the widow Identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date, in respect of: The same goods or services, or Closely related goods or services, or If it nearly resembles such a mark as to be likely to deceive or cause confusion; Is identical with an internationally wellknown mark, whether or not it is registered here, used for identical or similar goods or services Is identical with an internationally wellknown mark which is registered in the Philippines with respect to nonsimilar goods or services. Provided, that the interests of the owner of the registered mark are likely to be damaged by such use Is likely to mislead the public as to the nature, quality, characteristics or geographical origin of the goods or services Consists exclusively of signs that are generic for the goods or services that they seek to identify Consists exclusively of signs that have become customary or usual to designate the goods or services in everyday language and established trade practice Consists exclusively that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value Consists of color alone, unless defined by a given form; or Is contrary to public order or morality. (Sec. 123) Prior Use of Mark as a Requirement Actual prior use in commerce in the Philippines has been abolished as a condition for the registration of a trademark. (RA 8293) Tests to Determine Confusing Similarity between Marks Dominancy Test Focuses on the similarity of the prevalent features of the competing marks. If the competing trademark contains the main or essential or dominant features of another, and confusion is likely to result, infringement takes place. (Asia Brewery v. CA, G.R. No. 103543, 5 July 1993) Holistic Testa. Confusing similarity is to be determined on the basis of visual, aural, connotative comparisons and overall impressions engendered by the marks in controversy as they are encountered in the marketplace. Well-Known Marks Considered by the competent authority of the Philippines to be wellknown international and in the Philippines as the mark of a person other than the applicant or registrant Need not be used or registered in the Philippines Need not be known by the public at large but only by relevant sector of the public. Rights Conferred by Registration 10 years, renewable for a period of another 10 years. Each request for renewal must be made within 6 months before or after the expiration of the registration. Use by Third Parties of Names, etc. Similar to Registered Mark Registration of the mark shall not confer on the registered owner the right to preclude third parties from using bona fide their names, addresses, pseudonyms, a geographical name, or exact indications concerning the kind, quality, quantity, destination, value, place of origin, or time of production or of supply, of their goods or services. Infringement and Remedies Trademark Infringement The use without consent of the trademark owner of any a) reproduction, b) counterfeit, c) copy or d) colorable imitation of any registered mark or tradename in connection with the sale, offering for sale, or advertising of any goods, business or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers or others as to the source or origin of such goods or services, or identity of such business; or reproduce, counterfeit, copy or colorably imitate any such mark or tradename and apply such reproduction, counterfeit, copy or colorable limitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business or services (Esso Standard Eastern v. CA, G.R. No. L29971, Aug. 31, 1982) Damages The owner of a trademark which has been infringed is entitled to actual damages: The reasonable profit which the complaining party would have made, had the defendant not infringed his said rights; or The profit which the defendant actually made out of infringement; or The court may award as damages a reasonable percentage based upon the amount of gross sales of the defendant of the value of the services in connection with which Unfair Competition The passing off of ones goods as those of another.

Trade Names or Business Names Any individual name or surname, firm name, device nor word used by manufacturers, industrialists, merchants, and others to identify their businesses, vocations or occupants (Converse rubber Corp. vs. Universal Rubber Products, GR No. L27425, L30505, April 28, 1980). Collective Marks A "collective mark" or collective tradename" is a mark or tradename used by the members of a cooperative, an association or other collective group or organization. (Sec. 40, R.A. 166)

D. Copyrights Basic Principles, Sections 172.2, 175 and 181 Literary and artistic works, hereinafter referred to as"works", are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:(a) Books, pamphlets, articles and other writings;(b) Periodicals and newspapers;(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;(d) Letters;(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;(f) Musical compositions, with or without words;(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;(h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;(j) Drawings or plastic works of a scientific or technical character;(k) Photographic works including works produced by a process analogous to photography; lantern slides;(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;(m) Pictorial illustrations and advertisements;(n) Computer programs; and(o) Other literary, scholarly, scientific and artistic works. Unprotected Subject Matter.- Notwithstanding the provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea, procedure, system method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other miscellaneous facts having the character of mere items of press information; or any official text of a legislative, administrative or legal nature, as well as any official translation thereof. The copyright is distinct from the property in the material object subject to it. Consequently, the transfer or assignment of the copyright shall not itself constitute a transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several copies of the work imply transfer or assignment of the copyright. Copyrightable Works Original Works(a) Books, pamphlets, articles and other writings;(b) Periodicals and newspapers;(c) Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;(d) Letters;(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;(f) Musical compositions, with or without words;(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;(h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;(j) Drawings or plastic works of a scientific or technical character;(k) Photographic works including works produced by a process analogous to photography; lantern slides;(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;(m) Pictorial illustrations and advertisements;(n) Computer programs; and(o) Other literary, scholarly, scientific and artistic works. Derivative Worksa. Dramatizations, translations, adaptations, abridgements, arrangements, and other alterations of literary or artistic works; b. Collections of literary, scholarly, or artistic works and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents. (Sec. 173) Non-Copyrightable Works Idea, procedure, system, method or operation, concept, principle, discovery or mere data as such News of the day and other items of press information Any official text of a legislative, administrative or legal nature, as well as any official translation thereof Pleadings Decisions of courts and tribunals this refers to original decisions and not to annotated decisions such as the SCRA or SCAD as these already fall under the classification of derivative works, hence copyrightable Any work of the Government of the PhilippinesGR: Conditions imposed prior the approval of the government agency or office wherein the work is created shall be necessary for exploitation of such work for profit. Such agency or office, may, among other things, impose as condition the payment of royalties.XPN: No prior approval or conditions shall be required for the use of any purpose of statutes, rules and regulations, and speeches, lectures, sermons, addresses, and dissertations, pronounced, read, or rendered in courts of justice, before administration agencies, in deliberative assemblies and in meetings of public character. (Section 176, IPC) TV programs, format of TV programs (Joaquin v. Drilon, G.R. No. 108946, Jan. 28, 1999) Systems of bookkeeping; and Statutes Rights of Copyright Owner Economic rights The right to carry out, authorize or prevent the following acts: Reproduction of the work or substantial portion thereof Carryout derivative work (dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work) First distribution of the original and each copy of the work by sale or other forms of transfer of ownership Rental right Public display Public performance Other communications to the public Moral rights For reasons of professionalism and propriety, the author has the right: To require that the authorship of the works be attributed to him (attribution right) To make any alterations of his work prior to, or to withhold it from publication Right to preserve integrity of work, object to any distortion, mutilation or other modification which would be prejudicial to his honor or reputation; and To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec.193, IPC) Droit de suite (Right to proceeds in subsequent transfers or follow up rights) This is an inalienable right of the author or his heirs to receive to the extent of 5% of the gross proceeds of the sale or lease of a work of painting or sculpture or of the original manuscript of a writer or composer, subsequent to its first disposition by the author. The following works are not covered: Prints, Etchings, Engravings, Works of applied art, Similar works wherein the author primarily derives gain from the proceeds of reproductions. (Sec. 201, IPC) Rules on Ownership of Copyright Author Original literary and artistic works. (Sec. 178.1, IPC) Coauthors Works of joint authorship; in the absence of agreement, their rights shall be governed by the rules on coownership. In the course of employment, the copyright shall belong to:a. The employee, if not a part of his regular duties even if the employee uses the time, facilities and materials of the employer. (Sec. 178.3, IPC)b. The employer, if the work is the result of the performance of his regularlyassigned duties, unless there is an agreement, express or implied, to the contrary. (ibid.) The person who commissioned the work shall own the work but the copyright thereto shall remain with the creator In cases of work pursuant to commission, unless there is a written stipulation to the contrary. (Sec. 178.4, IPC) GR: Producer, the author of the scenario, the composer of the music, the film director, and the author of the work so adapted audiovisual work.XPN: The producers shall exercise the copyright to an extent required for the exhibition of the work in any manner. (Sec. 178.5, IPC) Writer in respect of letters subject to the provisions of Article 723, Civil Code. (Sec. 178.6, IPC) GR: Publishers deemed representatives of the author in case of anonymous and pseudonymous works.XPN: When the contrary appears or where the pseudonym or adopted name leaves no doubt as to the authors identity; or author discloses his identity. In case of collective works contributor is deemed to have waived his right unless he expressly reserves it. (Sec. 196, IPC) Limitations on Copyright Doctrine of Fair UseFair use permits a secondary use that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and The effect of the use upon the potential market for or value of the copyrighted work.Note: The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Sec. 182.2, IPC) Copyright InfringementIt is the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. The act of lifting from anothers book substantial portions of discussions and examples and the failure to acknowledge the same is an infringement of copyright. (Habana v. Robles, G.R. No. 131522, July 19, 1999)

E. Rules of Procedure for Intellectual Property Rights Cases (A.M. No. 10-3-10-SC) The contested or inter partes proceedings are: Patent Casesa. Petition to cancel an invention patent, utility model registration, industrial design registration, or any claim or parts of a claim; b. Petition for Compulsory Licensing or a license to exploit a patented invention. Trademark Casesa. Opposition against the registration of a mark published for oppositionb. Petition to cancel the registration of a mark. Parties in inter partes proceedings. The Petitioner in a cancellation proceeding and in a compulsory licensing proceeding and the Opposer in an opposition proceeding shall be deemed to be in the position of a plaintiff while the Respondent in a cancellation, compulsory licensing or opposition proceeding shall be in the position of defendant, with respect thereto. Section 3. Original jurisdiction over inter partes proceedings. The Director shall have original jurisdiction over inter partes proceedings. Such inter partes proceedings shall be heard before the Director, any Hearing Officer or other ranking official of the Bureau designated by the Director but all decisions and final orders shall be signed by the Director. Workflow/procedure in inter partes proceedings. (a) The Petition for Cancellation, Compulsory Licensing or Notice of Opposition shall be filed with the Bureau which shall check if the complaint is in due form and thereafter, shall issue an order for the payment of the required fee. (b) After payment of the required fee, the petitioner, his counsel or representative shall submit to the Bureau a copy of the official receipt and present the original thereof for comparison. Within twenty four (24) hours from receipt of the proof of payment of the required fee, the Assistant Director of the Bureau shall acknowledge receipt of the papers by assigning the Inter Partes Case Number, docket the same and then assign the case to any of the Hearing Officers through raffle under the rules promulgated by the Director General. (c) Within three (3) working days from receipt of the petition by the Bureau, the Hearing Officer to whom the petition is assigned shall immediately prepare and send, in the name of the Director, to all parties required to be notified in the IP Code and these Regulations the necessary orders, notice of publication, summons, and other notices, either by registered mail or by personal delivery. Summons and answer. The summons shall require respondent to answer the petition (and not to file a motion to dismiss) within fifteen (15) days from service of the summon. The respondent shall answer the petition in writing, either by denying specifically the material allegations of the petition or by alleging any lawful defense. He shall file his answer together with the sworn statements and documentary evidence and serve copies thereof upon the petitioner or opposer. The original answer shall be considered as answer to the amended petition unless a new answer is filed within ten (10) days from notice or service. No motion to dismiss shall be entertained. Instead, all grounds for dismissal shall be pleaded as affirmative defenses, the resolution of which shall be made in the decision on the merits. Pre-trial. Upon joinder of issues, the designated clerk of the Bureau shall prepare the Notice of Pre-Trial upon receipt of invitation from the Hearing Officer setting the date of the pre-trial conference. The pre-trial conference shall be set within two (2) months but not earlier than one (1) month from receipt of the Answer or other pleading. The notice of pre-trial shall be delivered by personal delivery or registered mail within two (2) days from the date on which instruction was given to the clerk. The notice of pre-trial shall require the parties to submit a pre-trial brief containing the following: (a) A brief statement of the parties claims and defenses; (b) Suggestions, if any, for simplification of issues; (c) A list of documents they intend to produce as evidence, together with appropriate markings as exhibits as well as the identification of witnesses and a statement of the substance and purpose of their testimony during the hearing on the merits. These documents must be produced for examination during the pre-trial conference without prejudice to the presentation of additional documents during the trial if the party was prevented from producing the same during the pre-trial on account of fraud, accident, mistake, excusable negligence or such other reason which the Director or Hearing Officer deems justifiable in the interest of justice and fair play; (d) A statement whether they can stipulate on facts not covered by admissions in their pleadings. If so, they should come with drafts of matters they are ready to stipulate on; (e) A statement whether they are open to the possibility of an amicable settlement; if so, they should be prepared on the pre-trial date to submit their minimum demands for purposes of settlement; and, (f) Such other matters as may aid in the prompt disposition of the action. Each party shall file with the Bureau and serve on the adverse party said pre-trial briefs at least three (3) days before the date of pre-trial conference fixed in the notice. As counsel needs the consent of his client for purposes of accepting an offer of compromise, the attendance not only of the attorneys of record but also of the parties themselves, is required for the pre-trial conference. Presence of any party may be dispensed with if his counsel is provided with a notarized power of attorney or the appropriate corporate authorization to make admissions and/or to accept and approve compromise proposals. The failure of the petitioner/opposer to appear when so required shall be cause for dismissal of the action with prejudice. A similar failure on the part of the respondent shall be cause to allow the petitioner/opposer to present his evidence ex parte and the Director to render judgment on the basis thereof. Dismissal for failure to prosecute. If the petitioner/opposer does not appear at the time and place designated in the Notice of Pre-trial Conference or a Notice of Hearing or in a subsequent order, or failed to prosecute his case for an unreasonable length of time, or fail to comply with these Regulations or any order of the Bureau, the petition or notice of opposition, as the case may be, may be dismissed for failure to prosecute and judgment rendered for the respondent to recover his costs from the petitioner/opposer, provided, however, that the Bureau may cancel the patent or trademark registration where it finds evidence independent of the petitioners submission. Within fifteen (15) days after receipt of the Order of Dismissal, the petitioner/opposer may file a motion to set aside such order if his failure to appear was by reason of fraud, accident, mistake or excusable negligence. Effect of failure of respondent to answer. If the respondent fails to answer within the period herein provided, the Hearing Officer shall, upon motion of the petitioner/opposer or motu propio, declare the respondent in default and forthwith receive evidence ex parte and submit his recommendations, to the Director. No service of papers other than substantially amended or supplemental pleadings and final orders or decisions shall be necessary on a party in default unless he files a motion to set aside the Order of Default within fifteen (15) days from receipt thereof on any of the grounds mentioned in the preceding paragraph, in which event he shall be entitled to notice of all further proceedings regardless of whether the order of default is set aside or not. Conduct of hearings. Should the Hearing Officer be absent on any scheduled date of hearing, the hearing shall automatically be conducted by his Chief Hearing Officer or, upon instruction of the Director, by any other Hearing Officer. All hearings shall be continuous until terminated and no postponement of hearings, specially those scheduled by agreement of the parties, shall be allowed over the objection of any party. However, in extremely meritorious cases and upon written motion filed with the Hearing Officer at least three (3) days before the scheduled hearing with proof of personal service upon the other party or parties, a postponement may be granted. Order of trial. The following procedure shall be observed during the hearing of the case: (a) The petitioner shall submit to the Hearing Officer and serve on the adverse party the sworn statement of the witnesses (which shall constitute the direct testimony of the affiants) and other documentary evidence at least three (3) days before the scheduled hearing and shall make his witnesses available for cross-examination by respondent during the scheduled hearing. (b) The respondent shall then present the sworn statements of witnesses (which shall constitute the direct testimony of the affiants) and other documentary evidence and shall make his witnesses available for cross-examination by petitioner during the scheduled hearing. (c) The petitioner and the respondent may, in succession, present rebuttal and sur-rebuttal evidence, with the direct testimony of witness being reduced into affidavit form, as herein prescribed. (d) If the testimony of the witness residing outside the Philippines is to be taken, said witness may testify personally in his own behalf, or the direct examination may be in the form of an authenticated affidavit and be submitted within the period fixed by the Hearing Officer, and the opposing party may cross-examine the witness through written interrogatories in the manner prescribed by the Rules of Court. The party presenting the witness shall bear the expenses pertaining thereto and shall obtain the necessary approval for the deposition. Submission of the Answer to cross interrogatories to the Bureau shall be made within six (6) months from the date of the issuance of the Letters Commission. Said period may be extended once for very justifiable reasons. In no case, however, shall the submission of said Answer exceed one (1) year from date of issuance of Letters Commission. Otherwise, the testimony of said foreign witness shall be stricken out by the Hearing Officer, motu propio or upon motion of the opposing party. (e) Failure to present the sworn statement of the witnesses and documentary evidence at the pre-trial shall be deemed a waiver of the right to present evidence during the hearing. No demurrer to evidence shall be entertained after the presentation of petitioners evidence. Respondent shall forthwith present evidence in its behalf. The Director, Chief Hearing Officer or any Hearing Officer shall receive relevant and material evidence, rule on offer of evidence and exclude all irrelevant matter, and shall act according to justice and fairness. The Bureau in the exercise of its power to investigate and hear cases within its jurisdiction shall not be strictly bound by the technical rules of evidence. When an answer fails to tender an issue or otherwise admits the material allegations of the adverse partys pleading, the Director may, on motion of said adverse party, render judgment on such pleadings. Any party seeking to recover upon a petition, a claim, counterclaim or cross-claim or against whom a petition, claim, cross-claim or counterclaim is asserted may, at any time after the issues are joined, move with supporting affidavit, depositions or admissions of parties, for a summary judgment in his favor as to all or any part thereof. The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may file with the Bureau and serve opposing affidavits at least three (3) days prior to the day of hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

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