A Study on Non-Practicing Entities’ Excising of Rights in Terms of Their Effects on the US Patent Litigation

近年來美國非專利實施實體之運作模式，已經顛覆了過去對專利之利用態度。自1980年代美國促進專利權政策之引導下，美國專利制度出現大量核發專利權、陪審團作出高額損害賠償金認定以及高昂的專利訴訟成本之問題。 非專利實施實體利用專利權人本來擁有的排他權，要求侵權損害賠償和申請禁制令，完全符合專利遊戲規則。然而在侵權與否未明朗之前，許多被訴之一方由於訴訟結果難以預測以及訴訟費用高昂，毋寧以支付和解金終結訴訟。非專利實施實體利用美國專利制度之缺點以獲取大量和解金或損害賠償金。因此，美國國會於2011年修正專利法，希望改善大量核發專利之問題；國際貿易委員會和聯邦貿易委員會等行政機關，也對非專利實施實體之權利行使提出意見；以及最高法院自2006年eBay案以來，更一改過去見解，作出削弱專利權人權利之判決。 本論文一方面對於非專利實施實體之行為，在必要專利之情況下，檢討可否以強制授權、專利權濫用以及FRAND宣言限制其權利行使；並也從另一角度，思考非專利實施實體對於專利市場中帶來之重要性。In recent years in the U.S., non-practicing entities’ excising of rights has already revolutionarily changed the pattern of exercising patent. Since the implementation of pro-patent policies in the 1980s, there have emerged such problems in the U.S. patent system: the USPTO massively grants patents; the jury decides substantial damages; the cost of litigation in the U.S. surges. It is completely in line with the rules of patent that non-practicing entities claim damages and injunction based on their exclusive right, which is inherently possessed by patent owners. However, due to the high cost of litigation and the unpredictability of results, many defendants would rather pay settlement to end the litigation before it is made clear whether they have violated others’ rights. Non-practicing entities take advantage of this drawback in U.S. litigation for obtaining the settlement and damages. Therefore, in 2011, the Congress amended the patent law, hoping to address the problem of granting patents massively. The International Trade Commission and the Federal Trade Commission also expressed opinions regarding the non-practicing entities’ excising of rights. Moreover, since the eBay case in 2006, the Supreme Court has changed its long-established tradition and weakened the right of patent owners. On one hand, with regard to non-practicing entities’ excising of rights, the thesis examined whether it is feasible to limit their behavior by using compulsory license, the patent misuse and FRAND when the patent is essential. On the other hand, the thesis also probed into the crucial role that non-practicing entities play in the patent system