解除專利威脅的第二招：談判授權
通訊設備巨擘Ericsson擁有一系列與行動裝置相關的專利，用來保護功率控制(節省電力)、編碼架構(改善通訊品質)等等技術，如果其他業者要實施專利技術，必須先得到Ericsson的同意，否則有引發專利侵權糾紛的風險。
之前的文章(解除專利威脅的第一招：撤銷專利)曾談到，解除專利威脅可透過撤銷專利的方式達成，然而找到強而有力的證據有時沒想像中來得容易。透過與專利所有人談判，簽訂授權合約，付出授權費用，取得免於被指控侵害專利的承諾，也是一種解除專利威脅的方式。
專利權能用來禁止他人實施專利技術，但同樣的專利一經授權，便無法再向被授權方的下游要求授權，以免阻礙受專利保護之物品在下游市場的流通及利用，此為權利耗盡原則。
Ericsson手握涉及通訊標準的基礎專利，行動裝置產業鏈上的業者若無法繞開專利，通常只剩尋求授權一途。基於權利耗盡原則，專利威脅的影響範圍與被授權方在產業鏈中所占的位置有關。當被授權方為晶片代工業者時，其合作的下游終端代工業者、終端品牌業者及電信服務業者也一併從專利威脅中抽身；當被授權方為終端品牌業者時，僅有其合作的下游電信服務業者能同樣免於受到專利威脅。
資料來源：改編自Ericsson簡報
有時同一產業的多個業者也會合組所謂的專利聯盟，將聯盟中各成員的專利集中管理，若外界欲取得特定產業的專利授權，可透過該產業專利聯盟(如影音產業的 MPEG LA)以包裹授權的方式，將原本可能歸屬於不同業者的多件專利打成一包進行談判授權。專利聯盟雖能提供有效率的授權運作，卻難以保證囊括所有具攻擊力的專利(例如摩托羅拉就從未參加MPEG LA)，因此向專利聯盟請求授權，仍無法完全免除專利侵權的風險。
📣 回顧：解除專利威脅的第一招：撤銷專利
📣 延伸閱讀：解除專利威脅的第三招：反訴還擊
📣 延伸閱讀：解除專利威脅的第四招：迴避設計
本文經 Patent1O1 授權轉載，原文在此
作者／鐘國晉 專利師
編輯／馬克斯 專利師
Image by Gerd Altmann from Pixabay
About The Author
鐘國晉
Patent1O1創辦人、專利師高考及格，曾任法律事務所專利工程師、法人機構產業分析師，現於金融業負責專利申請業務，熱愛思考專利權的本質及研究創新方法，喜歡化繁複為簡單
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