基于博弈论的合诉与分诉对专利侵权纠纷和解的影响研究

Research on the Influence of Joint Litigation and Split Litigation on the Settlement of Patent Infringement Disputes Based on Game Theory

目前,代表性国家形成合诉与分诉两种诉讼制度,不同的制度对专利侵权纠纷和解的影响并不相同,因此,分别构建合诉与分诉制度下专利权人和潜在侵权人之间专利诉讼的两回合博弈模型,通过逆向归纳法,从成本-收益角度对博弈模型进行求解及分析。结果表明:潜在侵权人和解率与和解金额负相关,与专利权人胜诉后的期望收益正相关;专利权人撤诉率与和解金额以及潜在侵权人和解费用负相关,与潜在侵权人诉讼费用正相关。与此同时,在分诉博弈模型中,潜在侵权人和解率还与专利权人赔偿诉讼费用负相关,专利权人撤诉率与潜在侵权人在侵权裁判后的市场损失正相关。因此,中国应提高专利侵权损害赔偿金额、适时借鉴分诉制度,企业也应当加大创新研发投入。

At present, representative countries have formed two litigation systems: joint litigation and split litigation,different systems have different effects on the settlement of patent infringement disputes. In view of this, this paper constructs a two-round game model of patent litigation between patentees and potential infringers under the system of joint litigation and split litigation respectively, solves and analyzes the game model from the perspective of cost-benefit through reverse induction. The results show that: the settlement rate of potential infringers is negatively related to the settlement amount, but positively related to the expected revenue of the patentee after winning the case;the withdrawal rate of the patentee is negatively related to the set-tlement amount and the settlement cost of the potential infringer,but is positively related to the potential infringers’ litigation cost;at the same time, in the split litigation game model,the reconciliation rate of potential infringers is also negatively related to the patentee’s compensation for litigation costs,and the patentee’s withdrawal rate is positively related to the potential infringer’s market losses after the infringement judgment. Therefore, China should increase the amount of damages, use the split liti-gation system for reference in a timely manner, meanwhile, enterprises should also increase innovation and research and development investment.