「unclean hands」是一種訴訟中"被告(如本案LNC)"的抗辯手段(defense of “unclean hands"),主因是訴訟一方(如本案專利權人EZPZ)有偽證、隱匿證據等不公平行為,導致因為不潔之手而失去對訴訟議題的救濟資格。曾在之前報導「圖解智慧財產權訴訟(被告篇) - 筆記」中提到。
其中重要的是,法院得出專利權人不當行為(如上述)與相關主張的直接與必然的關聯性(nexus),也上升到影響專利權人提出救濟的層級。
潘榮恩專利部落格、專利實務、專利筆記與Linux
enpan's Patent & Linux practice
(http://enpan.blogspot.tw/, http://enpan.blogspot.com/)
(接受委託安排課程)
ronpan@gmail.com,
enpan@msn.com
Thanks to your condolence for the terrible and biggest earthquake for 25 years hitting Hualien area of Taiwan. In Taiwan, except for Hualien and a few other places, most areas of Taiwan are safe. Due to my position, I cannot send my official email out, but here I would like to express my gratitude to SHIGA INTERNATIONAL PATENT OFFICE and the President Yasuhiko Murayama.
Ron
(1) An invention made by an employee will belong to him unless it was made in the course of the categories of duty expressly identified in s.39(1): 'normal duties' or 'duties specifically assigned to him' under s.39(1)(a), or duties of a nature such that the employee has 'a special obligation to further the interests of the employer's undertaking' under s.39(1)(b). (法院重申上述section 39(a)職務上職責上的發明,或是39(b)受雇員工對公司利益的特殊義務的發明應屬雇用人。)
(2) The two categories under s.39(1)(a) are mutually exclusive. (上述section 39(1)(a)有兩種類型:受雇人的職責或是職責外但讓與給雇用人。)
(3) The meaning of 'normal duties' in s.39(1)(a) is not to be resolved by reference to characterisations such as 'ordinary', 'day to day' or 'primary' duties. (正常職責不應藉由探討何謂ordinary, day to day, primary等鑽牛角尖的方式解釋。)
(4) The starting point in defining normal duties is the contract of employment; having considered the terms of the contract one must ask: what was the employee employed to do? (定義正常職責,從雇傭合約開始,考量受雇的工作內容。)
(5) However, the contract of employment is not the sole arbiter of normal duties. The overall question is whether the employee was employed to try to innovate and if so, what general sort of areas his innovation duties covered at the relevant time, i.e. the date on which the invention was made. (但雇傭合約也非唯一考量,會整體來看,例如受雇工作是否負責創新,而創新的範圍如何?)
(6) The duties of an employee may evolve over the course of time. The actions of employee and employer may give rise to an expansion or contraction of the duties initially undertaken and/or those specified in the contract of employment, so that they become (or cease to be) normal duties. (考量受雇人的職責可能會隨時間改變,受雇人與雇主的行為可能會擴大或縮小當初合約的範圍,以及/或,使合約內指定的工作職責變得不是或是正常職責。)
(7) The duty of confidence owed by an employee to an employer may provide a guide to the scope of his normal duties. If the circumstances are such that the employee would owe an equitable duty of confidence to his employer with regard to the invention, the invention will belong to the employer pursuant to s.39. (受雇人對雇用人負有的保密責任可能提供判斷正常職責的指引,如果在特定情境下受雇人對雇用人負有發明的保密義務,相關發明屬於雇用人。)
(8) An invention is made 'in the course of' an employee's normal duties under s.39(1)(a) generally in contradistinction to being made in a frolic of his own. (在受雇人正常職責下的發明,一般與受雇人自己私下玩樂得出的發明很不相同。)