| Summary: | 碩士 === 東吳大學 === 法律學系 === 98 === The patent owner has the right to exclude others from exploiting the patented invention without his consent. In principle, the patent owner can grant two types of licenses, one is an exclusive license, and the other is a non-exclusive license. There are inherent differences between an exclusive license and a non-exclusive license. It is generally recognized that the exclusive licensee enjoys some property interest in the patent. The exclusive licensee can prevent the patent owner and third parties from exploiting the patented invention in the scope of exclusive license, and can sue others for infringement. On the contrary, the non-exclusive license is only a contract right. By granting the non-exclusive license, an obligatory relationship is established between the patent owner and the licensee. The non-exclusive license does not enjoy an exclusive right, the licenses subsequently granted by the patent owner will be effective, even if the patent owner promises not to grant further licenses. The non-exclusive licensee also has no standing to bring suit for patent infringement.
Patent owners granting exclusive licenses are mainly universities, research institutes, and government agencies that usually do not engage in commercial exploitation of the patented inventions themselves. In addition, the biotechnology and medical industries that require long term and expensive investment also often use this type of license. However, compared to the high application and diverse development of a patent license, the current Patent Act has few provisions regulating the license. In order to make the definition and effect of exclusive license clearer, the draft amendment of the Patent Act submitted by the Executive Yuan to the Legislative Yuan on December 11, 2009 added the relevant provisions of definition of exclusive license and the right to grant sub-license. The Economics Committee of the Legislative Yuan deliberated and passed those provisions on June 2, 2010.
A patent exclusive license has many complicated legal issues, involving the patent law, contract law and competition law. In consideration for the high level of research involved for patent exclusive licenses, these are limited domestically, and there are also many different opinions to deal with the ambiguous problems in the application of exclusive licenses. This dissertation collects and analyzes the patent laws, judicial judgments and theories of United States, European Union, Japan, and Mainland China, and compares these with the systems and practical experiences in Taiwan.
In the beginning, this dissertation explains the meaning of a patent license from the ancient argument that the patent nature is a positive exploitation right or a negative exclusive right. Further, this dissertation explores several issues about the patent exclusive license, including the meaning of an exclusive license, the formation of an exclusive license, the legal nature of an exclusive license, the relationship of an exclusive license and a non-exclusive license granted on the same subject matter of the patent, the right of disposition owned by the exclusive licensee, the right to a remedy owned by the exclusive licensee and its influence to the right to a remedy owned by the patent owner, the best effort obligation born by the exclusive licensee and the special regulations to the exclusive license in competition law. Finally, this dissertation attempts to provide appropriate and feasible proposals to solve disputes regarding exclusive patent licenses.
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