論專利權行使與競爭法間之交錯—以事業寄發警告函為中心

Abstract

智慧財產權保護為當今各國產業競爭之重要策略，專利權排他性保護作為企業研發創新之誘因，使企業得保持其競爭優勢，然於此同時競爭法為實現其促進競爭之價值與功能，所為之管制卻同時打擊了專利權之行使，使專利法與競爭法如同雙頭馬車般拉扯。 企業在面對市場上流通侵權物時，通常先以警告函聯繫及告誡侵權行為人，進而即時防止損害擴大並取得商業談判之機會，同時避免進入曠日廢時、勞民傷財之訴訟程序。然而，警告函作為專利排他權之展現，行使此權利前，卻需恪遵公平交易法及其處理原則所設定之先行程序，在此即發生專利法與競爭法之交錯。專利法與競爭法盤根錯節之交纏絕非僅此，然本文僅聚焦於探討我國對於事業寄發警告函之限制及對正當行使專利權之認定。 本文研究發現，我國對於行使專利權之先行程序限制及對正當行使專利權之認定更偏重於關注競爭秩序，參酌美國與日本之規範模式後，本文認為我國對專利權行使之限制及認定應納入專利法之精神。 隨著我國產業發展從勞力密集取向變遷至當今知識技術取向，高科技產業無疑成為我國產業發展重中之重，而此等產業類型仰賴專利權之保護功能以維持競爭力，故本文亦探討當今我國事業經營面臨之法制環境，試提出可以改善之方向。

The protection of intellectual property rights has become a key strategy in enhancing industrial competitiveness for nations today. The exclusive protection offered by patent rights serves as an incentive for businesses to engage in research and innovation, enabling them to maintain their competitive edge. However, at the same time, competition law, aimed at promoting the values and functions of competition, imposes regulations that curtail the exercise of patent rights. As a result, patent law and competition law often pull in opposite directions, like a two-horse chariot. When businesses encounter infringing products in the market, they typically begin by issuing warning letters to contact and caution the infringers. This serves to immediately prevent further damage, creates an opportunity for commercial negotiation, and helps avoid lengthy and costly litigation. However, although a warning letter is an expression of the exclusive rights granted by patents, the exercise of such rights must first adhere to the procedures set by the Fair Trade Act and its guiding principles. It is here that the intersection of patent law and competition law arises. The entanglement between these two areas of law is complex, but this article focuses solely on the restrictions imposed on businesses when issuing warning letters and the criteria for determining the legitimate exercise of patent rights. This study finds that Taiwan's restrictions on the procedures for exercising patent rights and the determination of their legitimate use tend to prioritize maintaining competitive order. By referencing the regulatory models of the United States and Japan, this article suggests that Taiwan's restrictions and criteria should incorporate the spirit of patent law more fully. As Taiwan's industrial development has shifted from labor-intensive sectors to knowledge and technology-driven industries, the high-tech sector has undeniably become the cornerstone of the nation's industrial progress. Such industries rely heavily on the protective function of patent rights to sustain competitiveness. Therefore, this article also explores the legal environment that Taiwanese businesses currently face and proposes directions for improvement.