專利侵權下合理權利金損害賠償法制之反省與再建構──以我國專利法第97條第1項第3款之解釋適用為中心

Review and Reconstruction of Taiwanese Patent Law on Damages in Terms of Reasonable Royalties: Focusing upon the Subparagraph 3, Paragraph 1, Article 97 of Taiwan Patent Act

專利權價值反映於超越先前技術之技術貢獻價值，該技術貢獻價值隨著專利相關發明之實施，於市場上呈現出專利權之經濟價值。專利權經濟價值原本為專利權人所支配享有，但因專利侵權之發生，導致專利權價值減損，並有專利權價值不法挪移之現象。合理權利金法的特色，乃是透過假設授權協商，依照專利權人關於專利相關發明的實施管理計畫，以及侵權者之侵權計畫與結果，廣義且彈性地計算損害賠償。鑑於合理權利金法之重要性以及我國司法實務鮮少適用之現實，本文嘗試以比較法的角度，借鏡美國專利法與其司法實務之發展經驗，並結合相關理論與學說，期待為我國司法實務建議可行之合理權利金的運用模式與考量因素，同時為學術界挹注新的研究成果，以收拋磚引用之效。

The value of patent is shown in the technical contribution made by the patented invention beyond prior art. Such the technical contribution, along with the practice of the patent, will be transformed to the economic value in the market. Nevertheless, the occurrence of patent infringement breaks the ownership of the patentee over patent value, and eventually leads to illegal transfer of patent value to the infringer. In order to assess the objective scope on loss of patent value due to patent infringement, it is necessary to refer to the experience for practice of the patent by the patentee, as well as the result for patent infringement by the infringer. On considering the cost of information and administration resulting from patent infringement, assessment on damages for patent infringement is far from being exact. The adequate compensation through damages can’t be made on the ground of a compromise with the burden of aforesaid costs and arbitrary calculation. The advantage of the reasonable-royalty approach is established as a broad and flexible basis to calculate the damages from patent infringement, under the hypothetical negotiation, in accordance with the economic plan for the patent expected by the patentee and the infringing result produced by the infringer. Since the reasonable-royalty approach is significant but rarely adopted in the Taiwanese judicial decisions, the article tries to propose a workable model and related measuring factors for the future application of the reasonable-royalty approach in Taiwan by observing the comparative development of U.S. patent case law on reasonable royalties and the related academic literature. The article is expected to contribute a distinguished performance to the academia of patent law, and induce more deep-scale discussion in the issues on reasonable royalties.