美國專利法第273條

美國專利法第273條
Defense to infringement based on earlier inventor
（利用較早發明作為侵權之辯護）

35 U.S.C. 273
Defense to infringement based on earlier inventor.
(b)DEFENSE TO INFRINGEMENT.—
(1)IN GENERAL.— It shall be a defense to an action for infringement under section 271 of this title with respect to any subject matter that would otherwise infringe one or more claims for a method in the patent being asserted against a person, if such person had, acting in good faith, actually reduced the subject matter to practice at least 1 year before the effective filing date of such patent, and commercially used the subject matter before the effective filing date of such patent.

對於侵權的辯護，除了逐項針對權利要求提出差異與不侵權的理由外
更可利用已較早使用該發明為由提出辯護，比如提出在該專利案申請日的一年前已「完成」該發明（actually reduced the subject matter to practice），或是在該案申請日之前已進行商業上的用途（commercially used）等的證明

此時，可以宣稱該權利已耗盡
[原文]
(2)EXHAUSTION OF RIGHT.— The sale or other disposition of a useful end product produced by a patented method, by a person entitled to assert a defense under this section with respect to that useful end result shall exhaust the patent owner’s rights under the patent to the extent such rights would have been exhausted had such sale or other disposition been made by the patent owner.

權利耗盡：
利用本段落（35 USC 273）宣稱對於利用已專利的方法製作的產品的銷售或轉讓已權利耗盡，同樣應在該專利耗盡對該專利權人所銷售或轉讓的商品的權利，理由包括：
(A) 應用先前專利
(B) 由先前技術的專利權認或是共同利害關係人（privity）所推導
(C) 宣稱非一般授權：被控侵權者可宣稱該實施是由其他可以此條規定（35 USC 273）排除侵權者的延伸（extend）

[原文]
(3)LIMITATIONS AND QUALIFICATIONS OF DEFENSE.— The defense to infringement under this section is subject to the following:
(A)PATENT.— A person may not assert the defense under this section unless the invention for which the defense is asserted is for a method.
(B)DERIVATION.— A person may not assert the defense under this section if the subject matter on which the defense is based was derived from the patentee or persons in privity with the patentee.
(C)NOT A GENERAL LICENSE.— The defense asserted by a person under this section is not a general license under all claims of the patent at issue, but extends only to the specific subject matter claimed in the patent with respect to which the person can assert a defense under this chapter, except that the defense shall also extend to variations in the quantity or volume of use of the claimed subject matter, and to improvements in the claimed subject matter that do not infringe additional specifically claimed subject matter of the patent.

引用此規定的被控侵權者應有責提出上述證據
(4)BURDEN OF PROOF.— A person asserting the defense under this section shall have the burden of establishing the defense by clear and convincing
evidence.

被控侵權者可放棄使用侵權物
(5)ABANDONMENT OF USE.— A person who has abandoned commercial use of subject matter may not rely on activities performed before the date of such abandonment in establishing a defense under this section with respect to actions taken after the date of such abandonment.

僅能由產生/使用被侵權物的人引用此條規定辯護，而不能轉嫁至其他人
(6)PERSONAL DEFENSE.— The defense under this section may be asserted only by the person who performed the acts necessary to establish the defense and, except for any transfer to the patent owner, the right to assert the defense shall not be licensed or assigned or transferred to another person except as an ancillary and subordinate part of a good faith assignment or transfer for other reasons of the entire enterprise or line of business to which the defense relates.

限制273使用的時間：
引用此條規定之被控侵權方，其可能為善意授權使用或是由其他人轉讓，則相關防禦則僅限制於在專利有效申請日至善意授權使用的時間內，或是在善意授權日期以前
(7)LIMITATION ON SITES.— A defense under this section, when acquired as part of a good faith assignment or transfer of an entire enterprise or line of business to which the defense relates, may only be asserted for uses at sites where the subject matter that would otherwise infringe one or more of the claims is in use before the later of the effective filing date of the patent or the date of the assignment or transfer of such enterprise or line of business.

若被控侵權方無法以此條規定證明無侵害行為，法院得判決敗訴者支付合理的律師費用給予勝訴者（35 USC 285）
(8)UNSUCCESSFUL ASSERTION OF DEFENSE.— If the defense under this section is pleaded by a person who is found to infringe the patent and who subsequently fails to demonstrate a reasonable basis for asserting the defense, the court shall find the case exceptional for the purpose of awarding attorney fees under section 285 of this title.

若辯護人以此條規定防禦，則不能同時用102, 103條規定認為專利無效
(9)INVALIDITY.— A patent shall not be deemed to be invalid under section 102 or 103 of this title solely because a defense is raised or established under this section.

Ron