| Summary: | 碩士 === 國立中正大學 === 財法所 === 95 === To comply with Agreement on Trade-Related Aspects of Intellectual Property Rights, our government added “offer to sell” to its Patent Act, which was enforced in 2004. The amendment conferred on patentees the exclusive rights. In addition to the acts of making, using, selling, and importing, “offering to sell” was added to patent law. However, it is yet to be determined clearly what constitutes “offer to sell”. For example, is it to be determined according to the traditional contract law? Whether patent products should be completely physical embodiment in order to constitute infringement on offer to sell?... It is well known that amending such act to patent laws in the United States, which has strong trading connection with our nation, was originated from similar backgrounds. Therefore, this thesis aims to discuss “offer to sell” on patent law via discussions on relevant statutes and cases in the United States.
Comparisons between our patent law and that of U.S. show that “offer to sell” in our patent law references “Principles of Patent Infringement Identification” as a defining standard. We do not have laws similar to section 271(i) of the U.S. Patent Act (35 U.S. Code). Therefore, our “offer to sell” is more definite than U.S. laws in terms of application. However, our current statutes on “offer to sell” still have room for improvement. For instance, to truly protect the patentee, we may imitate U.S. statute law, which clearly establishes types of indirect patent infringement so that the patentee can seek compensation directly by patent laws when there is “offer to sell” indirect infringement. In addition, to avoid discrepancy in recognition of “offer to sell” in patent law, applicability of “Principles of Patent Infringement Identification” should really be put into practice thoroughly.
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