建構我國專利輔助侵權制度—兼論與專利濫用原則之互動

Abstract

專利輔助侵權立法論的爭議存來以久，本文旨在提出專利輔助侵權制定之必要性及迫切性，考量科技發展所帶來的新型侵權態樣，填補專利權人無法獲得及時且有效的救濟漏洞。自美國實務發展，觀察輔助侵權制度明文化前後的判決的變化，發現輔助侵權與專利濫用原則呈現互為消長的關係，當法院大量准許輔助侵權訴訟，使專利權人獲得法院的背書，開始藉由搭售契約擴大專利範圍至非專利的元件，恐將損及市場競爭秩序，法院為抑制失控的輔助侵權，自衡平法理催生專利濫用理論，成為被告抗辯的利器，更使法院作為調控輔助侵權的配套措施。 但我國智慧財產法院就涉及輔助侵權的案件，多數以專利法尚未增訂間接侵權為由，否定適用的可能性，加上忽視無體財產權與有體財產權的差異，機械性地套用民法侵權行為規定，導致原告的敗訴率遠高於被告，然而原告耗費大量成本提起訴訟，卻受限於專利制度的欠缺和法院制式化的運作，被告享有原屬於專利權人的利益，卻無庸承擔任何責任，兩相比較下顯失均衡，實應增訂專利輔助侵權制度，消弭不公平的狀態持續存續。

The controversy of patent contributory infringement legislation has been around for a long time. This article aims to propose the necessity and urgency of the formulation of patent contributory infringement. There are two reasons for the propose. First, considering the new types of infringement are brought by technological development. Second, filling the loopholes where the patentee cannot obtain timely and effective relief. According the development of practice in the United States, I have observed the changes before and after in the judgments of the contributory infringement system, and found that contributory infringement and patent misuse doctrine show interactive relationship. When the court allowed a large number of contributory infringement litigation, the patentee obtained the court’s endorsement and began to expand the scope of patents to non-patented components by tying contracts, which may undermine the order of market competition. In order to curb out-of-control contributory infringements, the common law has spawned patent abuse theory, which has become a sharp weapon for defendants to defend. Furthermore, this theory as a supporting measure makes the courts to regulate contributory infringement. However, the cases which involve contributory infringements in Taiwan’s intellectual property courts, most of them deny the possibility of application on the grounds. Because the patent law has not enacted the indirect infringements regulation, the judges are not willing to use in the judgement. In addition, most of the judges ignore the difference between intangible property rights and tangible property rights and mechanically apply civil law infringement provisions in cases. As a result, the loss rate of verdicts show that plaintiff is much higher than defendant. Nevertheless, the plaintiffs spend a lot of money and time to file a lawsuit, they always get a bad consequence because of lacking indirect infringements regulation in the patent law and the standard operation of the court practice. By contrast, the defendants enjoy the benefits that belonged to the patentees and do not take any responsibility. The comparison between the plaintiffs and defendants are clearly out of balance. Therefore, this article suggests the patent contributory infringement regulation should be enacted to eliminate continuous unfairness.