歐洲侵權規定筆記

筆記
（這裡筆記僅供參考，還是以原文為主）

專利法院協議（UPCA）中Art. 25, 26分別協議出直接侵權與間接侵權的法院意見，重點有：

• Article 25
• 專利侵權行為及於製造、販售要約、上市、使用、進口以及貯存未經授權的專利產品。
• 禁止未經授權使用專利流程。
• 對於流程專利（process），未經專利權人許可，不能在專利有效的合約國內使用該流程，如此，方法專利及於使用該方法"直接"產生的物品的製造、販售要約、上市、使用、進口以及貯存。

• Article 26
• 專利權及於「間接」使用受到專利保護的物品與方法，只要使用了其中「必要的元件（essential element of that invention）」的手段，而這些手段意圖即為了完成已專利的發明。
• 「間接侵權」不及於使用了專利中的一般常見的物品，除非有第三方誘使某人執行了已專利的發明。
• Article 27(a) to (e)規範了哪些行為不能列為「間接侵權」的行為。

• Article 27
• 此條規範了專利不及於的行為，包括：
• 私下與非商業目的的行為。
• 實驗目的的行為。
• 育種用途的生物材料與開發新植物品種的行為。
• Article 13(6) of Directive 2001/82/EC or Article 10(6) of Directive 2001/83/EC規範的行為。
• 藥劑師為了個別病例開出的處方箋與藥物處理。
• 國際組織在船隻上的行為，以及暫時進入有專利保護的合約國境內。
• 國際組織的飛機或車輛使用的行為，以及暫時進入有專利保護的合約國境內。
• 農民使用自己收穫（或擁有）的產品進行繁殖的銷售，或是經過專利權人同意農業用途的商業行為。
• 農民自行繁殖使用受到保護的牲畜的農業用途、相關材料銷售，或是經過專利權人同意的商業行為。而以上繁殖用途是與相關材料目的是農業活動。
• Articles 5 and 6 of Directive 2009/24/EC產生資訊的使用行為。
• Article 10 of Directive 98/44/EC允許的行為。

[專利法院協議（Agreement on a Unified Patent Court, UPCA）]（http://www.epo.org/law-practice/legal-texts/official-journal/2015/etc/se5/p327.html）

Article 25

Right to prevent the direct use of the invention

A patent shall confer on its proprietor the right to prevent any third party not having the proprietor's consent from the following:

(a) making, offering, placing on the market or using a product which is the subject matter of the patent, or importing or storing the product for those purposes;

(b) using a process which is the subject matter of the patent or, where the third party knows, or should have known, that the use of the process is prohibited without the consent of the patent proprietor, offering the process for use within the territory of the Contracting Member States in which that patent has effect;

(c) offering, placing on the market, using, or importing or storing for those purposes a product obtained directly by a process which is the subject matter of the patent.

Article 26

Right to prevent the indirect use of the invention

(1) A patent shall confer on its proprietor the right to prevent any third party not having the proprietor's consent from supplying or offering to supply, within the territory of the Contracting Member States in which that patent has effect, any person other than a party entitled to exploit the patented invention, with means, relating to an essential element of that invention, for putting it into effect therein, when the third party knows, or should have known, that those means are suitable and intended for putting that invention into effect.

(2) Paragraph 1 shall not apply when the means are staple commercial products, except where the third party induces the person supplied to perform any of the acts prohibited by Article 25.

(3) Persons performing the acts referred to in Article 27(a) to (e) shall not be considered to be parties entitled to exploit the invention within the meaning of paragraph 1.

Article 27

Limitations of the effects of a patent

The rights conferred by a patent shall not extend to any of the following:

(a) acts done privately and for non-commercial purposes;

(b) acts done for experimental purposes relating to the subject matter of the patented invention;

(c) the use of biological material for the purpose of breeding, or discovering and developing other plant varieties;

(d) the acts allowed pursuant to Article 13(6) of Directive 2001/82/EC or Article 10(6) of Directive 2001/83/EC in respect of any patent covering the product within the meaning of either of those Directives;

(e) the extemporaneous preparation by a pharmacy, for individual cases, of a medicine in accordance with a medical prescription or acts concerning the medicine so prepared;

(f) the use of the patented invention on board vessels of countries of the International Union for the Protection of Industrial Property (Paris Union) or members of the World Trade Organisation, other than those Contracting Member States in which that patent has effect, in the body of such vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of a Contracting Member State in which that patent has effect, provided that the invention is used there exclusively for the needs of the vessel;

(g) the use of the patented invention in the construction or operation of aircraft or land vehicles or other means of transport of countries of the International Union for the Protection of Industrial Property (Paris Union) or members of the World Trade Organisation, other than those Contracting Member States in which that patent has effect, or of accessories to such aircraft or land vehicles, when these temporarily or accidentally enter the territory of a Contracting Member State in which that patent has effect;

(h) the acts specified in Article 27 of the Convention on International Civil Aviation of 7 December 1944, where these acts concern the aircraft of a country party to that Convention other than a Contracting Member State in which that patent has effect;

(i) the use by a farmer of the product of his harvest for propagation or multiplication by him on his own holding, provided that the plant propagating material was sold or otherwise commercialised to the farmer by or with the consent of the patent proprietor for agricultural use. The extent and the conditions for this use correspond to those under Article 14 of Regulation (EC) No. 2100/94;

(j) the use by a farmer of protected livestock for an agricultural purpose, provided that the breeding stock or other animal reproductive material were sold or otherwise commercialised to the farmer by or with the consent of the patent proprietor. Such use includes making the animal or other animal reproductive material available for the purposes of pursuing the farmer's agricultural activity, but not the sale thereof within the framework of, or for the purpose of, a commercial reproductive activity;

(k) the acts and the use of the obtained information as allowed under Articles 5 and 6 of Directive 2009/24/EC, in particular, by its provisions on decompilation and interoperability; and

(l) the acts allowed pursuant to Article 10 of Directive 98/44/EC.

Supplementary publication - Official Journal EPO：
http://www.epo.org/law-practice/legal-texts/official-journal/2015/etc/se5/p327/2015-se5-p327.pdf

Ron