未受「專利法」保護之標的是否可受我國「公平交易法」之保護

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Title:	未受「專利法」保護之標的是否可受我國「公平交易法」之保護
Authors:	林宜男
Contributors:	淡江大學國際企業經營系
Keywords:	專利法;公平交易法;專利;獨占性;個案研究;Patent Law;Fair Trade Law;Patent;Monopoly;Case Study
Date:	1999-11
Issue Date:	2009-03-26 13:15:49 (UTC+8)
Publisher:	臺北市：行政院公平交易委員會
Abstract:	「專利法」係屬智慧財產權法主要部份之一，當有一發明創新物品或技術具有新穎性、實用性與創作性等性質時，即可申請核准成為「專利法」保護之標的。希望藉由法律規範保護人類智慧結晶，以提昇企業技術與增進社會福祉；同時依靠公權力之行使，以保護私人產業研發成果與品牌避免被他人嫖竊。而我國「公平交易法」立法主要目的在於「維護交易秩序與消費者利益，確保公平競爭，並促進經濟之安定與繁榮。」此法限制企業以獨占、寡占、結合與聯合等行為影響市場公平競爭性，嚴重扭曲了銷售價格引導資源配置之機制。本文研討「專利法」與「公平交易法」競合問題，並以兩問題為主要討論重點：(一)「專利法」對獨占專有權有固定保護期限，而「公平法」對此並未有明文之限制，一但專利權保護期限失效是否仍受「公平法」保護?(二)若一發明創作產品如未取得專利權或已過「專利法」保護期限，但該產品之表徵已為「相關大眾所共知」，此時是否可為或仍為「公平法」保護對象？希望除了理論與法條探討之外，得佐以相關實務案例作為研究輔助資料，兼顧理論與實務之結合成果。 "Patent Law" is a crucial part of Intellectual Property Law. An invented or created object or technology that satisfies the criteria of novelty, utility and originality can apply to be approved as the object protected by "Patent Law". This is designed to protect the achievements of human intelligence with law and regulation, in order to update enterprise technology and enhance social benefits. The use of public forces serves to protect private and enterprise research or brands from being pirated by others. The purpose of "Fair Trade Law" is to "maintain transaction order, protect consumer interests, ensure fair competition and boost economic stability and prosperity". This Law prevents enterprises from affecting fair competition in the market by resorting to oligarchy, merger, combination and alliance, thus seriously distorting the mechanism of resources distribution based on selling prices. This article focuses on "Patent Law" and "Fair Trade Law" and explores their possible overlapping and differences. First, "Patent Law" provides for fixed period of protection for monopoly rights, while "Fair Trade Law" does not explicitly provide for this. Under the circumstances, once the patent protection period has expired, is the object still under the protection of "Fair Trade Law"? Second, if an invented or renovated object has yet to apply for patent right or its patent protection period has expired, but the features of this object are already "common knowledge", could it still be or go on being under the protection of "Patent Law"? This article seeks to address these issues by discussing the relevant theories and legal provisions, supported by empirical case studies, so that a balanced conclusion can be reached. "Patent Law" is a crucial part of Intellectual Property Law. An invented or created object or technology that satisfies the criteria of novelty, utility and originality can apply to be approved as the object protected by "Patent Law". This is designed to protect the achievements of human intelligence with law and regulation, in order to update enterprise technology and enhance social benefits. The use of public forces serves to protect private and enterprise research or brands from being pirated by others. The purpose of "Fair Trade Law" is to "maintain transaction order, protect consumer interests, ensure fair competition and boost economic stability and prosperity". This Law prevents enterprises from affecting fair competition in the market by resorting to oligarchy, merger, combination and alliance, thus seriously distorting the mechanism of resources distribution based on selling prices. This article focuses on "Patent Law" and "Fair Trade Law" and explores their possible overlapping and differences. First, "Patent Law" provides for fixed period of protection for monopoly rights, while "Fair Trade Law" does not explicitly provide for this. Under the circumstances, once the patent protection period has expired, is the object still under the protection of "Fair Trade Law"? Second, if an invented or renovated object has yet to apply for patent right or its patent protection period has expired, but the features of this object are already "common knowledge", could it still be or go on being under the protection of "Patent Law"? This article seeks to address these issues by discussing the relevant theories and legal provisions, supported by empirical case studies, so that a balanced conclusion can be reached.
Relation:	第五屆競爭政策與公平交易法學術研討會論文集，頁 67-122
Appears in Collections:	[Department of International Business Management] Proceeding

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