A Study on the "Equivalent" of Patented Goods of Government Procurement Specification

• Main Authors: Yu-Lin Lu, 盧宥霖
• Other Authors: Ming-Cheng TSAI
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/79122105184461435870

碩士 === 國立臺灣大學 === 科際整合法律學研究所 === 99 === The coverage of the prescription of government procurement specification should not merely include the procurement requirements of the procurement agent being satisfied, but, more importantly, boost fair competition. Government Procurement Act (GPA) is supposed to prescribe procurement specification in terms of function, performance, or standard, but in case that there is no sufficiently precise or intelligible way of describing the procurement requirements, a particular trademark, trade name, patent, etc. can be referred to noted with words such as “or equivalent”. The term “equivalent” is used to gain different ends as the law concerned changes. In Patent Law, the term “Doctrine of Equivalents” is applied to judge whether or not patent infringement is posed as a result of a similar item or method, which thus entitles the patentee to the exclusive right within a certain period of time, so that a restriction of competition is carried into effect. Government Procurement Act, on the other hand, legalizes the use of a similar item or method in government procurement by the name of “or equivalent,” which thus boosts fair competition. When the patent problem is involved in procurement specification, e.g., when the standard of specific patent or hidden patent is noted with “or equivalent” as referred in GPA Article 26-III, and thus potential problems arise concerning equivalent patent, method, item, or standard which coincide with specific patent having exclusive right, GPA, Standard Law, and Patent Law should, in this case, converge for explanation of applicability. To conclude, this study suggests that when it comes to the issue about Patent of Government Procurement Specification, “the way” in F.W.R. is not recommended being listed in the equivalent feature matching model for fear that there is improper restriction of competition.