智慧財產法院應否革新、廢除或改名

104年3月號道法法訊 (275)		DEEP & FAR
智慧財產法院應否革新、廢除或改名(十二)	蔡清福　律師 ·　交大航技系輪機組畢業 ·　輪機高考及格 ·　輪機甲種特考及格 ·　台大法律系畢業 ·　律師高考及格 ·　東吳法碩甲組碩士 ·　創立道法法律事務所

例如，就某一爭點，法院固已許雙方表述，法官卻本於自由心證之誤解或高踞司法殿堂之尊嚴，做出脫離事實、或竟超出雙方所主張事實之事實認定，此時，兩造除更加相信傳統所謂 [犯官符]，以自解外，尚有何計？上訴或可得救，然亦可能僅係犯官符之某種救贖而已。前曾提及，各(大)事務所可能以打贏訴訟為最高目標，說謊或扭曲僅為其策略運用，法官無清明之心智或無雅量適度公開心證，讓其智慧或觀點接受檢驗，其判決結果僅只一場鬧劇，因此轉而釀成本專欄初始指出重要廠商不再申請台灣專利結果，豈難想像？再以權利金或損害賠償之計算為例，美國在Georgia-Pacific Corp. v. United States Plywood Corp.中，曾指出其考量因素有以下十五項：1. The royalties received by Georgia-Pacific for licensing the patent, proving or tending to prove an established royalty. 2. The rates paid by the licensee for the use of other similar patents. 3. The nature and scope of the license, such as whether it is exclusive or nonexclusive, restricted or nonrestricted in terms of territory or customers. 4. Georgia-Pacific’s policy of maintaining its patent monopoly by licensing the use of the invention only under special conditions designed to preserve the monopoly. 5. The commercial relationship between Georgia-Pacific and licensees, such as whether they are competitors in the same territory in the same line of business or whether they are inventor and promoter. 6. The effect of selling the patented specialty in promoting sales of other Georgia-Pacific products; the existing value of the invention to Georgia-Pacific as a generator of sales of nonpatented items; and the extent of such derivative or “convoyed” sales. 7. The duration of the patent and the term of the license. 8. The established profitability of the patented product, its commercial success and its current popularity. 9. The utility and advantages of the patent property over any old modes or devices that had been used. 10. The nature of the patented invention, its character in the commercial embodiment owned and produced by the licensor, and the benefits to those who used it. 11. The extent to which the infringer used the invention and any evidence probative of the value of that use. 12. The portion of the profit or selling price that is customary in the particular business or in comparable businesses. 13. The portion of the realizable profit that should be credited to the invention as distinguished from any nonpatented elements, manufacturing process, business risks or significant features or improvements added by the infringer. 14. The opinion testimony of qualified experts. 15. The amount that Georgia-Pacific and a licensee would have agreed upon at the time the infringement began if they had reasonably and voluntarily tried to reach an agreement. 以上經典判決，並非無可改易，如在Microsoft v. Motorola breach of contract case案中，法官 Robart即以以下理由修改之 — “The parties in a hypothetical negotiation would set RAND royalty rates by looking at the importance of the SEPs to the standard and the importance of the standard and the SEPs to the products at issue.”而獲好評。然筆者舉本例，僅在凸顯一種思維、或一種邏輯或思辨程序，即吾人欲為何種判斷或判決，並無可或不可，要在其必出於理、法及情。就此一角度，筆者僅再舉三例以明之。其一，No doctrine of the patent law is better established than that a prior patent or other publication to be an anticipation must bear within its four corners adequate directions for the practice of the patent invalidated. If the earlier disclosure offers no more than a starting point for further experiments, if its teaching will sometimes succeed and sometimes fail, if it does not inform the art without more how to practice the new invention, it has not correspondingly enriched the store of common knowledge, and it is not an anticipation.” Dewey & Almy Chemical Co. v. Mimex Co., 124 F.2d 986, 989 (2d Cir. 1942)此一案例中，法院為如次前後兩段富含哲理之名言雋語，資為其邏輯思辯之過程：「No doctrine of the patent … or the practice of the patent invalidated.」、及「If the earlier disclosure offers no more than a starting point …, it has not correspondingly enriched the store of common knowledge, and it is not an anticipation.”」則舉世為之瘋狂或傳頌，焉無理由？其二，Citing a reference which merely indicates that isolated elements and/or features recited in the claims are known is not a sufficient basis for concluding that the combination of claimed elements would have been obvious. That is to say, there should be something in the prior art or a convincing line of reasoning in the answer suggesting the desirability of combining the references in such a manner as to arrive at the claimed invention… Ex parte Hiyamizu, 10 USPQ 2d, 1393, 1394 (Bd Pat. App. Inter, 1988)此一案例中，法院之名言雋語有「Citing a reference which merely indicates that isolated elements and/or features recited in the claims are known is not a sufficient basis for concluding that the combination of claimed elements would have been obvious.」、及「That is to say, there should be something in the prior art or a convincing line of reasoning in the answer suggesting the desirability of combining the references in such a manner as to arrive at the claimed invention…」。其三，自In re Donaldson Co., Inc., 16 F.3d 1189, 1195 n.8 (Fed. Cir. 1994)案例一出，"claims in an application are to be given their broadest reasonable interpretation consistent with the specification."換言之，在此案前，撰寫請求項如不用功能手能( means plus function)言語，乃不合格之代理者；然本案一出，撰寫請求項如出乎此，則非屬合格之數。其影響是解之深與遠，乃若如斯。然歷史反動似無所不在，2014年2月，又出現In Enocean v. Facei一案，諭示如下名言雋語「where the claims included a "signal receiver for receiving a first electromagnetic signal transmitted by said first signal transmitter," the Federal Circuit determined that "receiver . . . presumptively connotes sufficiently definite structure" to those skilled in the art.」、及「"just because the disputed term is not limited to a single structure does not disqualify it as a corresponding structure, as long as the class of structures is identifiable by a person of ordinary skill in the art."」綜上分析，對比於美國專利判決，我智慧法院判決幾乎毫無可觀、不值一顧。僅係存在而無益於世間專利實務之發展，雖或可某程度解決本地專利糾紛，顯非鷹揚台灣或中國智慧或意氣之道。揆其成因，法官養成過程很可能存有問題，致其深度專利侵權知識或微妙細節判斷能力或經驗有所不足所使然。此外，因智慧法官皆係萬中選一，可能因自命甚高，致有超強之自尊或自我主觀，遂生審判獨裁或剛愎心態問題，而未能景仰浩瀚知識或戒慎恐懼於專利知識之可能不足、或在賦予科技事實專利法上意義之過程中，無知或無感於奈米時代中，「差之奈米，失之萬里」之可能偏差，致遺憾頻仍。