原法參考：http://enpan.blogspot.com/2010/03/273.html
筆記
35 U.S.C. 273 Defense to infringement based on earlier inventor.
(a) IN GENERAL.–A person shall be entitled to a defense under section 282(b) with respect to subject matter consisting of a process, or consisting of a machine, manufacture, or composition of matter used in a manufacturing or other commercial process, that would otherwise infringe a claimed invention being asserted against the person if—
(1) such person, acting in good faith, commercially used the subject matter in the United States, either in connection with an internal commercial use or an actual arm's length sale or other arm's length commercial transfer of a useful end result of such commercial use; and
(2) such commercial use occurred at least 1 year before the earlier of either—
(A) the effective filing date of the claimed invention; or
(B) the date on which the claimed invention was disclosed to the public in a manner that qualified for the exception from prior art under section 102(b).
在美國專利法第273條一般定義中，此法提供先使用者可免除事後的專利的侵權告訴，只要信實地證明在美國境內於該專利前已有適度的商業實施，也就是證明已藉由此商業使用產生有用的結果（產品），而此商業實施在該專利之有效申請日前超過1年，或是在該專利發明最早公開揭露（符合102(b)同人公開）之前超過1年
(b) BURDEN OF PROOF.—A person asserting a defense under this section shall have the burden of establishing the defense by clear and convincing evidence.
侵權被告有責任(corrected on Nov.8,2011)證明專利有效申請日/揭露日前已商業實施
(c) ADDITIONAL COMMERCIAL USES.—
(1) PREMARKETING REGULATORY REVIEW.—Subject matter for which commercial marketing or use is subject to a premarketing regulatory review period during which the safety or efficacy of the subject matter is established, including any period specified in section 156(g), shall be deemed to be commercially used for purposes of subsection (a)(1) during such regulatory review period.
除了上述公開製造、販售等商業實施，還有一些是在進入市場（premarketing）前的實施，如專利法第156(g)條所規範的藥品、人類生技產品，這些仍視為是上述(a)段規定的商業實施範疇內
(2) NONPROFIT LABORATORY USE.—A use of subject matter by a nonprofit research laboratory or other nonprofit entity, such as a university or hospital, for which the public is the intended beneficiary, shall be deemed to be a commercial use for purposes of subsection (a)(1), except that a defense under this section may be asserted pursuant to this paragraph only for continued and noncommercial use by and in the laboratory or other nonprofit entity.
如果是在非營利的實驗室的使用，如大學、醫院的實驗，其目的在於公眾利益，亦可被視為是上述(a)段規定的商業實施範疇內，但主張此條對抗侵權訴訟，仍僅限於相關延續的非營利研究中
(d) EXHAUSTION OF RIGHTS.—Notwithstanding subsection (e)(1), the sale or other disposition of a useful end result by a person entitled to assert a defense under this section in connection with a patent with respect to that useful end result shall exhaust the patent owner's rights under the patent to the extent that such rights would have been exhausted had such sale or other disposition been made by the patent owner
權利耗盡，專利權人之相關專利權不及於在此條規範對抗相關專利的先前商業使用所產生的結果（產品）
(e) LIMITATIONS AND EXCEPTIONS.—（本條先使用權抗辯的限制與例外）
(1) PERSONAL DEFENSE.—
(A) IN GENERAL.—A defense under this section may be asserted only by the person who performed or directed the performance of the commercial use described in subsection (a), or by an entity that controls, is controlled by, or is under common control with such person.
利用此條的抗辯僅限於執行相關商業實施例的人或其事業體
(B) TRANSFER OF RIGHT.—Except for any transfer to the patent owner, the right to assert a defense under this section 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.
利用此條的抗辯的實施權不能授權或轉讓給其他人，除非是此抗辯相關（從屬）的實體
(C) RESTRICTION ON SITES.—A defense under this section, when acquired by a person as part of an assignment or transfer described in subparagraph (B), may only be asserted for uses at sites where the subject matter that would otherwise infringe a claimed invention is in use before the later of the effective filing date of the claimed invention or the date of the assignment or transfer of such enterprise or line of business.
利用此條的抗辯的實施權，在上述(B)段所規範的授權或轉讓範圍僅能在所宣稱已實施的範疇（事業體、使用區域）內
(2) DERIVATION.—A person may not assert a 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.
上述利用此條的抗辯的實施權不能對抗專利權人或是共同利益關係人根據相關專利所衍生的標的物（如專利權）
(3) 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 for which it has been established that a commercial use that qualifies under this section occurred, 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.
上述利用此條的抗辯的實施權並非是專利權的一般授權，僅及於對抗的商業實施，其非侵害該專利的變化或改良還是為抗辯的範疇
(4) ABANDONMENT OF USE.—A person who has abandoned commercial use (that qualifies under this section) 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 on or after the date of such abandonment.
已符合利用此條抗辯的商業實施若被拋棄，即不能再依據拋棄以前的活動（用以抗辯專利侵權）對應之後的侵權行為，也就是專利權前已經拋棄的商業實施不能作為抗辯的理由
(5) UNIVERSITY EXCEPTION.—
學術上的例外
(A) IN GENERAL.—A person commercially using subject matter to which subsection (a) applies may not assert a defense under this section if the claimed invention with respect to which the defense is asserted was, at the time the invention was made, owned or subject to an obligation of assignment to either an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), or a technology transfer organization whose primary purpose is to facilitate the commercialization of technologies developed by one or more such institutions of higher education.
若相關專利權在發明當下為經過高等教育機構或商業化轉讓機構的授權，不能以此條作為抗辯的基礎
(B) EXCEPTION.—Subparagraph (A) shall not apply if any of the activities required to reduce to practice the subject matter of the claimed invention could not have been undertaken using funds provided by the Federal Government.
上述(A)段不及於使用聯邦政府的補助的發明，也就是若學術機構使用聯邦基金的研發產生的專利仍可以此條先前商業實施作為抗辯
(f) UNREASONABLE 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.
以此條抗辯失敗的人，法院可以要求繳交代理費用
(g) INVALIDITY.—A patent shall not be deemed to be invalid under section 102 or 103 solely because a defense is raised or established under this section.
以此條抗辯的理由不能作為102, 103的無效用途，也就是以此條抗辯成功，雖證明在專利以前已有商業實施，但其事實不能作為新穎性或進步性的無效理由
Ron
沒有留言:
張貼留言