專利申請權第三人之訴——以行政處分前為核心

Litigation of a Third Party with the right to Apply for a Patent: With the Pre-Administrative Disposition as the Core

基本上，這是民事訴訟和行政訴訟之爭，這種審判權爭議也只存在於大陸法系國家，英美法系國家基本上沒這種問題。首先，第一個爭議是：專利申請權的性質，有人認為是行政程序法、公法上的申請權；另外有人認為是民法上的期待權，屬民事爭議案件。兩派論述在臺灣法院、行政機關各有支持者。臺灣專利法規定是：專利行政處分核准後，如有發現申請人並非真正申請權人（非真正發明人），可以向行政機關舉發並撤銷專利權。第二個爭議是：專利法漏未規定如果在專利行政處分核准前，發現申請人並非真正申請權人，該如何處理？依前例循行政訴訟解決爭議？或是依民事糾紛民事法庭解決爭議？二○二三年初臺灣公佈專利法修正草案由前述行政訴訟轉向民事訴訟解決爭議，但專利法修正草案並未通過，目前仍維持舊法，僵局尚未解決。第三個爭議是：發明技術的法律定位問題，本文以下展開論述。

Basically, this is a dispute between civil litigation and administrative litigation. This dispute over trial rights only exists in countries with civil law systems. Countries with common law systems basically do not have this problem. First of all, the first dispute is: the nature of the right to apply for a patent. Some people think it is an application right under administrative procedure law and public law; others think it is an expectation right under civil law and it is a civil dispute case. Both camps have supporters in Taiwan's courts and administrative agencies. Taiwan's Patent Law stipulates that after the patent administrative action is approved, if it is found that the applicant is not the real applicant (not the real inventor), the patent can be filed with the administrative agency and the patent right can be revoked. The second dispute is: The patent law does not provide for what should be done if it is discovered that the applicant is not the real applicant before the patent administrative action is approved? Should the dispute be resolved through administrative litigation according to precedent? Or should the dispute be resolved through civil courts? In early 2023, Taiwan announced a draft amendment to the patent law that would shift the aforementioned administrative litigation to civil litigation to resolve disputes. However, the draft amendment to the patent law has not been passed. The old law is still maintained, and the deadlock has not yet been resolved. The third dispute is: the legal positioning of invented technology, which is discussed below in this article.