Abstract
This research was arisen from the most famous case of patent license, the case of Phillip patent license, in Taiwan. Therefore, to probe into the legal application of patent right misuse, the balance between the patent rights and the competition, and the legal effect (Rechtsfolge) of the patent right misuse are the main issues of this article. First of all, this research analyses the fact of the Phillip case in order to understand how the patentees in this case licensed their patents, and whether it was involved in the patent misuse. The research next analyses the judgments of both the civil court and the administrate court in Taiwan to understand how the courts in Taiwan enter into a decision of the legal effect of patent right misuse. Second of all, this research studies the legal application and legal effect of the other countries. For instance, this article analyzes the original cause, concept, application of the principle of patent misuse in order to figure out the criteria in practice in the United States. And this research looks into the regulation of the European Union, Japan, and the People Republic of China as well, to make a study of whether the applications of the other countries are suitable for Taiwan or not. Furthermore, this article considers the method to restrain the patent misuse and to figure the legal effect of patent misuse. There are about four theories to regulate the patent misuse in Taiwan: (1) integrating into the application of competition laws, (2) binary application of competition laws and patent laws, (3) legislating a new law and, (4) returning to the application of civil laws. This article stands for the theory of returning to the application of civil laws; hence, it consists and compares these four different theories and deliberates the reasons why returning to the application of civil laws is the most appropriate one. Last but not the least, this article discusses the possible legal effect and result of the Phillip case if the legal system stands for the theory of the application of civil laws, and illustrates the advantages once this theory applied in practice. This is the main purpose of this article, to be a useful reference for the further law enacting.