從專利申請歷史檔案談專利侵權被告之防禦 策略─以隔熱浪板專利案為例

Abstract

The patent file history is like the “Food Traceability” in modern technological agriculture, the difference is that the “Food Traceability” is independently completed by the “recorder”. All the recording, from the beginning, the exact method of spraying the fertilizer, the degree of fertilization to the duration of each stage, are irreversible from the time perspective. Hence, it is almost not able to be verified for the facts at that specific time by the third party while the biggest differences “the Patent File History” possess are: first, this history will be done by not only the patent applicant but also the official patent authorization organization and any third party which means they will all be the co-lexicographers of this file. Second, the file records every event at every time point, and most important is that the details and contents for everything that happened can be reversed and inserted are recorded like depositions. In the patent infringement litigations, the defendants are usually in the disadvantaged positions, at most, they often defend the enforced objects are perceived as the common way in the business and do not recognize the existence of patents. However, they do not realize the patent gazette is to inform the public. So that if they want to do further effective defense, they will have to find the evidences to prove what they said “the prior art” are. Also, they should be alleged by data acquired from previous patent case. From the defense that the patent right holder used for his own right, the clear meaning of the wording used to apply for the patent is ensured. And the defense can be applicable for “File Wrapper estoppel” in the future. Last, the range of the patent right claims should be well defined so that it can clarify whether the object truly infringe the scope of the patent, and further, if the result of allegation forces to limit the scope of the patent so to have revocation of the patent right that in these two situations, the defendants can have proactive and effective defense of “non-patent infringement”.