我國司法裁判之專利要件量化實證分析

Abstract

專利要件之判斷決定專利有效性，為專利申請案勝敗之關鍵及專利舉發案中兩造攻防最核心的議題；在專利民事侵權訴訟中，專利要件之不具備亦為被告最常提出之抗辯。為忠實呈現我國近期司法實務判斷各專利要件之全貌，本文以智慧財產法院設立後所有發明及新型專利行政及民事裁判為研究對象，進行敘述統計之量化實證研究，並針對行政及司法實務上最重要之專利要件─進步性為更深化之分析。透過本文完整的實證分析，統計顯示，我國舉發成功率高，從而專利被認定為無效或得撤銷之比例偏高，且ㄧ專利於各審級皆被認定為無效或得撤銷之比例亦高。而在各專利要件之比對上，無論是在行政或民事訴訟中，「進步性」皆為專利有效性判斷上最大宗的要件，我國專利因欠缺進步性而被認定為無效之比例高。於舉發案中，以欠缺進步性將專利爭執為無效明顯較將專利重新爭取為有效更加容易，換言之，經過實證研究，我國專利權人勝訴率確實偏低。

Patentability of inventions is the most important claim in the invalidly petitionary lawsuit or the applied lawsuit; in addition, it is also the most common defense in patent infringement lawsuit. To show the whole situation of the patentability decisions of Taiwan courts, I intend to complete an empirically quantitative study on the all administrative and civil judgments about utility model patents and invention patent after the establishment of Intellectual Property Court. Furthermore, I complete a more thorough study on non-obviousness such as the type of inventions. Through the holonomic empirical study, this thesis proclaim that there has a high success ratio of patent invalid petition cases , thus the ratio that patents have been determined invalid and voidable is observably high. Further more, the ratio that patents have been determined invalid and voidable in every level of trial is also high. On the other hand, to view several patentability of inventions relatively, this thesis claim that non-obviousness is the maximum of patentability of inventions judgements in administrative and civil trial. Thereinto, because lack of non-obviousness, a majority of patents have been determined invalid. For example, there is easier that to prove a patent is lack of non-obviousness than to argue a patent is valid. As said and narrated above, this situation is really a severe problem that should be solved imminently and preferentially.