Prior Use in Taiwan Patent Act
Date Issued
2007
Date
2007
Author(s)
Li, Yu-Hsun
DOI
zh-TW
Abstract
Patent is a kind of intellectual property right, with strong monopoly effect. Originally, the goal of patent system is to promote the industrial development. However, more and more corporations get patents to beat other competitors by misusing the monopoly effect of patent, instead of benefiting from it. And this kind of behavior may lead to “patent misuse”.
With the case taken in the Chapter 1, we can perceive that if one has used the invention before others apply the same or similar thing to get a patent, he or she will still use the invention after others get the patent. This is so called “the Right of Prior Use” or “Defense of Prior Use”. Therefore we may have a conclusion that the right of prior use(or we say the defense of prior use) can avoid part of the side effect of patent misuse.
Looking back to the patent law system in Taiwan, the right of prior use is regulated in Subparagraph2, Paragraph 1, Article 57 of Patent Act, and there are still the regulations of effect and range in Section 2. However, there are still gray belts about the character, the elements, the content, and the range. In addition, the judgements about the right of prior use in Taiwan are not clear enough. Some of them even misunderstood the right of prior use and novelty. So we have to do our best to improve the regulation and judgements about the right of prior use.
After the research by comparative law and economical analysis, we can conclude that the right of prior use is indeed a kind of right. Its character includes inherence, carry out positively, come into operation, non-monopoly, and transferability. The right holders are allowed to possess, use, make, offer to sell, and sell the subject of the right of prior use. And the right holder also can make use of the subject further in the purpose of original behavior. Besides, we also have to regulate the subjective element of goodwill strictly, in order to get rid of people with bad intent asserting the right of prior use.
Although the right of prior use can alleviate the side effect of monopoly of patent, maybe we should exam the patent law system. Perhaps, more importantly, we should clean the selfish thinking and accomplish this world.
Keywords: intellectual property right, TRIPS, patent, trademark, copyright, prior use, reinvention, trade secrets.
Subjects
智慧財產權
TRIPS
專利權
商標權
著作權
先使用權
再發明
營業秘密
intellectual property right
patent
trademark
copyright
prior use
reinevention
trade secrets
Type
thesis