專利訴訟保險制度之探討

Abstract

專利訴訟保險，一般可分為「攻擊型」和「防禦型」兩種類型，分別是針對專利權人或是潛在侵權人所設計的保險，在遇有承保之專利侵權事故發生時，由保險人提供專利訴訟所需要的費用，以供被保險人提起或抗辯專利侵權訴訟。由於攻擊型的專利訴訟保險，在被保險人勝訴時，保險人可依約定取得損害賠償的一部分，一般而言保險業者較有興趣承保，且保險費率也較防禦型的專利訴訟保險的費率來得低。攻擊型的專利訴訟保險，在性質上雖然偏向財產保險，然其所承保的是一種屬於準物權上的期待利益，與一般的財產保險仍有所不同。防禦型的專利訴訟保險，在性質上較偏向於責任保險，一般而言僅承保因專利訴訟所衍生的費用，但亦有額外承保因專利侵權所需承擔的損害賠償者。

現行的專利訴訟保險在推廣上面臨最大的困難，便是保險費率偏高，參與投保的企業家數太少，無法達到有效分攤風險的目的。雖有研究建議由各國專利局介入，採行強制保險的方式，然而此作法一方面並未考慮到並非所有的專利都能商品化，一方面也忽視了不同型態的專利權人其投保的需求及意願，不符合自由市場的機制，本文並不建議採行。由專利訴訟風險分析的資料顯示，技術領域、企業的規模、擁有的專利組合數量等因素，都會影響到專利涉訟的風險，應該被列入專利訴訟保險費率訂定的考量因素。有意投保專利訴訟保險的業者，可依照自己的產業別、企業規模及產品特性等因素，先做好專利訴訟的風險評估，除可以此作為交涉保險費率的依據，並可將此制度應用於內部智慧財產權的管理及運用上。

Patent litigation insurance (PLI) can be generally classified as “offensive” and “defensive” types. The offensive type of PLI covers litigation expenses incurred in enforcing the insured patent against infringers up to the policy limit. The defensive type of PLI, on the other hand, reimburses the insured for the legal expenses when he must defend himself against patent infringement lawsuits. For the offensive type of PLI, if the infringement suit succeeds, the insurer under some policies can share in the damage award, most often up to a limit of fifty percent, until the insurer’s costs are reimbursed. That is one of the reasons why the insurance companies are more interested in offensive PLI than in defensive one, and why the premium of offensive PLI is usually lower than that of defensive one. Although the offensive PLI is usually categorized as property insurance, it is different from the typical property insurance is some ways, one of which is the distinction between the damage to the economic rights which attach to the property, and the damage to the property right itself. The defensive PLI is usually categorized as liability insurance, in which the insurer agrees to indemnify against damages caused as a result of the insured’s conduct. Most of defensive PLIs cover only the legal expenses incurred in defending a lawsuit, but the optional coverage for the reimbursement of damage awards against the insured can also be purchased.

One of the biggest obstacles to PLI progress is high level of premium, which makes fewer companies interested in purchasing the insurance. Some studies suggested adopting an obligatory mechanism coordinated by the Patent Office, which would expand the number of insurance subscribers and hence improve the possibility of generally lower insurance premiums. However, an obligatory arrangement is hardly practicable since not all patented inventions can be commercialized, and there are a number of patent holders who would not purchase the insurance under normal conditions because they estimate the risk of patent litigation to be small. Therefore market developments would be preferable. From the data of patent litigation risk analysis, the technological domain, the company size, and the patent portfolio size are the key factors to the probability of involving a patent litigation, and therefore should be taken into consideration in determining the insurance premiums. Risk assessments of involving a patent litigation should be conducted first by the insured based on the technological domain, the company size, the characteristics of products and other key factors. The analysis results could be used to negotiate with the insurers to obtain a differentiated and a reasonable insurance premium. The systematic methodology of litigation risk analysis can be also applied in the management of intellectual property for better risk assessment.