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当专利权与公共利益或其他法益相冲突时,实为政策上应审慎考虑之难题,此有赖立法机关制订法律时,善用智慧加以决定。所谓的专利强制授权,即我国台湾地区“专利法”上之特许实施,专利权人既可获取适当之对价,亦无损于公共利益。但是,专利权之经济价值乃在于法律所赋予之合法独占地位,强制授权制度使专利权人失去原有之独占地位,对其经济价值必然有相当程度之影响。各国在制定专利强制授权之相关规定时,对于专利权人之利益与公共利益间之平衡应多加以仔细考虑。本文拟以我国台湾地区强制授权之案例,即以飞利浦CD-R光盘专利强制授权与罗氏克流感强制授权两个案件进行评析。
When a patent right conflicts with the public interest or other legal interests, it is actually a policy that should be carefully considered in the policy. This depends on the wisdom and wisdom of the legislature in formulating the law. The so-called compulsory patent authorizations, that is, the franchise implementation on the “Patent Law” in Taiwan of our country, the patentee can obtain the appropriate consideration and does not harm the public interest. However, the economic value of the patent right rests with the lawful monopoly position granted by law. The system of compulsory authorization loses the patentee from its original monopoly position, which inevitably has a considerable impact on its economic value. When formulating the relevant provisions of the compulsory patent authorization, each country should give more consideration to the balance between the interests of the patentee and the public interest. This article intends to authorize the case of Taiwan in China, that is, the compulsory licensing of Philips CD-R CD-ROM and the Roche flu forced authorization of two cases for comment.