論企業共同開發完成後之專利權共有－－以我國台灣地區法律為論述基礎

Co-Ownership of Patents Issues Arising from Corporate Joint-Development: A Discussion Based on Taiwan Laws

近年來科技產業由於研發投入日漸增長，企業間為降低投資風險且達到合縱連橫之目的，盛行所謂共同開發(Joint-Development; Co-Development)的模式。在實務上，這種共同開發契約常約定未來產生的專利權由共同開發的雙方共有(Co-Owner)並共同提出申請，在假設此種合約的准據法為我國台灣地區法律的前提下，這種知識產權共有的模式會衍生諸多法律與商業問題，亟待討論和釐清。具體而言，可以從商業面（特別是經濟分析）與法律面分別切入。法律層面上，宜將專利權共有定性為民法上的分別共有之一種特殊類型，並區別應有部分與共有之專利，二者會產生不同性質的法律問題，如現行法並未規定應有部分得否授權他人之問題，而專利共有與職務發明極易產生衝突。經濟層面上，一般認為共有專利為少數共有人對某技術市場之壟斷，故符合經濟學上所謂“寡占”(Oligopoly)之定義，通過交易成本、賽局理論與公共財的悲劇等理論加以分析，結論上大多得出共有專利易於破局此一悲觀的看法。

Recently, because of the R&D investment in technology industry growth, and the purpose of reducing the investment risk and realizing collaboration between enterprises, the so-called joint–development or co-development mode is prevalent. In the practice, this kind of joint development contract commonly used to agree on future patent right belongs to the co-owner who developed and made their application together. Under the assumption that the applicable law of this agreement is the law of Taiwan, the co-owned mode of the intellectual property would derive many legal and business issues, which need to be discussed and clarified. Specifically, we can start from the business side (especially the economic analysis) to the legal side. In the legal dimension, the co-owned right should be defined as a special kind of respective-owned right in the civil law, and it is also needed to make a comparison between the part should have and the co-owned patent as they would induce Legal issues with different nature. For instance, the present Law doesn’t provide the issue whether the part should have could be authorized or not, while it is quiet easy to produce a conflict between the co-owned patent and on-duty invention. The present law also advocates that there is no need for the enterprise to get the permission of the other co-owners when they outsources another enterprises to manufacture the patent product (OEM), on the contrary, it should be regarded as they implement the patent by themselves. Generally, in the economic dimension, it is believed that co-owned patent is the monopoly of the minority co-owner in some kind technical market, therefore it is accorded with the definition of oligopoly in economics. Based on the theory analysis of transaction costs, game theory, and the tragedy of the public goods, most of the conclusions are the co-owned patent is trended to break this pessimistic view.