添附、看作、專利進步性(上)

Translated title of the contribution: Accession, Seeing as, and Nonobviousness in Patent Law

Research output: Contribution to journalArticlepeer-review

Abstract

American property law scholars, such as Merrill and Smith, have proposed inspiring studies of the doctrine of accession as a general principle of property law. This article examines patent law’s nonobviousness requirement in terms of accession. Accession is a process of searching for the fit manager of resources. In assigning the initial entitlement, accession often uses proxy measurement. The Civil Law’s provisions on accession (Articles 811 and 812) and nonobviousness in patent law are all examples of using proxy measurement. Nonobviousness was meant to measure the inventor’s contributions. Yet due to the difficulty of measuring contributions, patent law adopted difference as a proxy variable for contribution. This article borrows from Wittgenstein’s “seeing as” and Quine’s holism to explore how difference is determined. The last part of this article discusses why the patent owner does not have to pay back the value deriving from using prior arts.
Translated title of the contribution Accession, Seeing as, and Nonobviousness in Patent Law
Original languageChinese (Traditional)
Pages (from-to)163-185
Number of pages24
Journal月旦法學雜誌
Issue number244
DOIs
StatePublished - Sep 2015

Keywords

  • Accession
  • Inventive Step
  • Nonobviousness
  • Seeing as (Wittgenstein)
  • Holism (Quine)

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