因應全球暖化現象論經濟思維之重構及專利制度之修正

專利制度有追求進步之內涵，促成了工業化，可謂經濟成長之催化劑。但工業化的生產行為及其所刺激的消費行為，消耗許多能源，造成溫室氣體大量排放，導致全球暖化，故倡言永續發展時，也應討論如何修正專利法制以為因應。經濟成長固然避免糧食不足現象發生，但因未區別消費需求性與欲求性之差異，亦未認知資源稀少性與耗竭性之不同，大量的消費及生產造成今日環境浩劫，實為全球暖化之癥結，故應導正偏誤之經濟思維。惜目前吾人仍不思降低欲求，不貫徹溫室氣體排放之限制，認為再生能源取代傳統能源，可維持經濟成長又解決全球暖化問題，實屬錯誤。西方文化存有人定勝天，追物質水準提升的思維，故消耗過多資源，本文主張，經濟理論中供需原則應計入永續發展的成本，經濟成長亦應受適當限制，更應參照中華文化之順天思想以求返璞歸真，方屬革心治本之道。因應全球暖化，專利制度必須以加速發展綠色科技，及限制溫室氣體排放為原則，積極進行修正。修正範圍應包括加強充分揭露、限制專利標的、調整實體要件、調整專利權期間、限制專利權實施、增加效力不及事項、適當使用舉發制度及強制授權、考量建立綠色科技計畫、配套內國其他法規、調和國際法規，及平衡國際技術移轉等，方能竟其全功。

關鍵字

專利；全球暖化；碳排放；永續發展；綠色科技；環保；進步性；充分揭露；技術移轉；調和

並列摘要

The patent system has helped western countries move toward industrialization and acquire economic growth accordingly. However, the industrialized countries, along with their mass productions and limitless consumptions, had contributed excessive carbon dioxide emission, causing global warming and climate change in return. The existence of relationship between the patent system and global warming can be evidenced by checking, inter alia, its underlying incentive theory which supports the system with ideology to pursue industrial progress. So, the patent system can be deemed as a catalyst to economic growth, and amending the patent system is needed in light of global warming. The progress ideology had survived in western culture, along with its derivatives of liberalism, capitalism, and consumerism. People tend to believe they are justified to pursuing to satisfaction of endless, ever- growing material wants. With that belief, the economic growth became nothing but a mechanism to reflect the material progress ideology. Therefore, the material progress ideology shall be reassessed and ultimately discarded, and instead the Confucian and Taoist philosophies which suggest harmonizing with rather than challenging the mother nature shall be adopted. To be meaningfully conducting sustainable development, we must clearly identify the need from want, acknowledge the scarcity of resources, and significantly reduce the demand of consumption to save the energy and in return save the earth. And, the sustainable production shall be established and GHG emission limitation shall be set forth as a cap. However, various schools of thoughts debate about whether amending to patent system can be utilized to resolve the global warming problem in considering of its neutrality in nature and lacking of legal authority. The author argues that the patent system can and shall be amended in this regards because the patent system itself is not a mere neutral platform for providing information, and the wording of patent regulations does provide authority for amending its regulations regarding environmental issues. The author proposes to suggest amendments to the patent system itself, and harmonization with related regulations. For the former one, we need to provide more incentives to encouraging green technology filing by adopting a price model. And, we need to well define the contents of green technology without limiting it to be the renewable energy. Moreover, we need to expediting the examination of green invention, requiring sufficient disclosure of GHG emission information, examining the eligibility of subject matter from the environmental perspective, and incorporating the moral utility doctrine into patentability. And, we also need to adjusting length of patent term, revoking patents which are potential pollutants, and compulsory licensing if necessary. Also, we need to deal with green patent applications in a more effective way by adopting a green technology program. For the latter one, we need to harmonize with domestic regulations, e.g., The Fundamental Science and Technology Act and The Environment Act, and various patent systems and international organizations around the world as well. Last, while green technologies are mostly held by developed countries, we need to transfer green technology patents to developing countries, such that more countries can be jointed as a team to resolve the global warming problem together.

並列關鍵字

Patent ； Goble Warming ； Carbon Dioxide Emission ； Sustainability ； Green Technology ； Environmental Protection ； Nonobviousness ； Sufficient Disclosure ； Technology Transfer ； Harmonization