設計專利侵權認定分析─兼論與著作權法及公平交易法之交錯適用

Abstract

現今工業設計已不再單由設計專利保障，多重保護已為時勢之所趨；是以，各法制與設計專利間之互動與調和，益顯重要。有關工業設計於著作權法上之保護，比較各國應用美術保護門檻後，本文認為，無論取得設計專利權與否，符合我國法之原創性要件即應予保護；往昔「以手工一品製作之美術工藝品為限，排除機械產製作品保護」之見解，應予揚棄。關於原創性要件之解釋，或可從客觀之「創作可能性」觀點切入，方得於鼓勵文化發展與防免獨占間取得平衡。工業設計於公平交易法之保護，從公平交易法保護競爭秩序之觀點，若事業持續投資廣告、行銷，使工業設計合於表徵之「周知性」要件，應得與設計專利權競合保護，以維護相關事業或消費者對該當表徵之信賴利益，不致產生混淆誤認之情事。另表徵於達「周知性」或取得設計專利前，勢必須要相當時間之積累，避免於此法律保護之空窗期間，遭他事業不當之高度仿襲，是以本文建議參考日本不正競爭防止法「禁止奴隸性仿冒」之短期保護規定，加以規制。 於設計專利保護法制方面，現行之設計專利侵害鑑定要點，於實務運作上有諸多疑慮，本文擬從比較法制與我國實務見解之觀察，提出建議。有關專利申請範圍界定階段之「排除純粹功能性特徵」，本文觀察美國法之發展，鑒於自圖式排除純粹功能性特徵，易使圖式變得零碎且局部，違背整體觀察原則，是以本文主張應將功能性特徵保留於圖式中一併衡量，或可採比例權重分析之方式，以兼顧「整體觀察原則」及「盡可能降低功能性特徵之影響」。有關侵權認定階段，首先，單獨之新穎特徵檢測法與整體觀察原則相悖，應予揚棄；再者，侵權判斷主體應為「熟悉先前技藝之一般購買者」；此外，本文比較美、歐盟、日侵權判斷方法後，採歐盟法制度，於考量設計自由度後，將相同與相異處進行比例權重分析，為較客觀的量化標準，亦能反映出功能性所帶來之侷限。

Nowadays, industrial designs are not just protected by the Design Patent Law. Multiple protections have become the mainstream. Therefore, the relation and reconciliation between the Design Patent Law and various Acts is very important. Firstly, the thesis focuses on the protection of industrial designs under the Copyright Act. After reviewing applied art regulations in many countries, this thesis thinks that no matter the design is patented or not, as long as it meets the “Original” element, then it should be protected by the Copyright Act. The view in the past was that “only handmade art craft shall be protected by the Copyright Act, excluding the protection for machine-made industrial designs,” and this thesis believes that such view should be abandoned. To explain the “Original” element, one might start with the view of “creative possibilities,” and could find the balance between encouraging culture development and avoiding monopolism. Secondly, the thesis looks at the protection for industrial designs under the Fair Trade Act. From the view of protecting competition order, if an enterprise continues investing in advertising and marketing to make an industrial design well-known, then the industrial design should be protected by both the Design Patent and the Fair Trade Act. The double protection is to respond to the enterprises’ and consumers’ trusts on such industrial design patent and prevent confusion. In addition, it usually takes a long time before a characterization of an industrial design reaches the level of “well-known” or before an industrial design gets patented. In order to avoid dead copy of an industrial design by other enterprises during such legal window period, this thesis thinks that we should reference to the Japan Control Law of Injustice Access for the protection against dead copy during the window period. Regarding the design patent protection, the identification of design patent infringement has many problems in practical operation. Therefore, this thesis intends to compare Taiwan’s and other countries’ regulations and to look into the opinions of practitioners, and then provides advice. As for the “excluding functional feature” when defining the protection range of a patent application, this thesis looked into the development of United States Law and found that excluding functional features from a drawing would make the drawing fragmented and partial, violating the overall impression principle. Hence, this thesis believes that functional features should be retained in the drawing and be observed along with other features, or be analyzed by proportional weight, in order to take into account both “overall impression principle” and “reducing the effect of functional features as much as possible”. As for the infringement identification, firstly, this thesis believes that as the single novelty point test is against overall impression principle, it should not be adopted. Secondly, the subject of patent infringement test should be ordinary consumers who are familiar with prior art. Thirdly, after reviewing the design patent infringement tests of United States, European Union and Japan, this thesis adopts European Union’s regulations. After factoring in the freedom of design, this thesis analyses proportionally the similarities and differences of these features. This method is based on a more objective quantitative criterion and should reflect the functional features’ limitation to the freedom of design.