论专利独占被许可人的诉权

On the Right of Exclusive Patent licensee to File an Action Against Patent Infringement

除专利权人之外,我国法院还受理由专利独占被许可人提起的专利侵权之诉。尽管独占被许可人享有诉权的事实已经突破了合同的相对性原则,但该做法依然得到了法律和司法解释的支持以及学界主流观点的认可。分析该问题的成因后,以专利权权利类型法定为依据,证明授予被许可人诉权无法被视为立法者明确设定在民法制度既有原则之外的一个特例。学界试图否定独占专利许可证的债权属性的论述,不仅在解释论层面难以提高诉权赋予条款自身的自洽性,还会破坏法律体系最低限度的内在和谐。基于这种现状,对法院在现行法律及司法解释相关条款修正之前如何对损害赔偿进行合理分配作出初步建议。

Except for the patent owner, the exclusive patent licensee is also eligible to bring litigation against patent infringer to Chinese courts. Although the right of exclusive patent licensee to file an action against patent infringement breaks the principle of relativity in contract law, it is supported by effective law and judicial interpretations, as well as the academia. The paper analyses the reason for this phenomenon, relies on the principle of statutory types of patent right, proves that it is hard to regard the right to sue by a licensee as an exception clearly created beyond the extant civil law principles by legislators. The academic circle tries to deny the obligation character of exclusive patent license, which cannot enhance the self-justifcation empowered to the stipulation by the right to sue in terms of interpretive theory, rather, it will disrupt the lowest inherent harmony of the legal system. Given this, the paper presents some suggestions regarding the reasonable distribution of damages by courts before the revision of relevant articles of existing law and judicial interpretation.