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January 22, 2015

数学は権利を創出するか(2)

 数学の話題には事欠かない。素材はたくさんある。
トヨタ自動車は,燃料電池自動車の普及に向けて,燃料電池に関する特許を無償で提供すると発表した。トヨタが提供するのは,単独で持っている5,680件の燃料電池関連の特許。水素と酸素を反応させて発電する燃料電池自動車の心臓部や,水素タンク,システム制御関連などが含まれている。トヨタは他の自動車メーカーなどに対して,2020年末までに期間を限定し,すべて無償で提供するという。
一方,インフラとなる水素ステーションに関連する特許の提供に関しては期限を設けていない。年末に燃料電池自動車「ミライ」を世界で初めて一般向けに販売した。特許の開放によってトヨタ方式を広め普及を後押しする狙いがある。燃料電池車は世界の自動車メーカーも開発に前向き。競合メーカーも高い関心を示している。公開予定の特許の利益(独占の利益)は計り知れない。

先週,ノーベル賞学者中村教授の意見広告(1.16日経)を見た。気づかれただろうか。
教授がいうには,発明の超過利益=①「発明にかかる製品が生んだ利益」-(「会社の通常の利益」+「会社がその発明を非独占的に無償で使用できる権利の対価」)+②「第三者からの特許ライセンス料」だと試算している。青色LEDの発明の対価としては,会社の得た独占的利益(実施料相当額)1208億円のうち,教授の貢献度50%を考慮して認めた604億円(東京地判)ではなく,自説の計算式を採用すべきと言われるのである。教授は裁判で,会社が発明を使って3357億円の利益(=超過収益)を上げている。ただし,トーマツ鑑定では製品化から口頭弁論終結時までの独占の利益が493億円という。少なくとも,これが相当対価だ。その算式は,
 特許権の相当対価=特許に係る独占の利益×特許権の貢献度×発明者の貢献度
そして自分の貢献度がすべてだ。会社が独占する利益3357億円が,自分の職務発明の対価であると主張されていた。トーマツ鑑定がどうやって493億円の独占的利益を算出したか詳細は不明だが,平成6年から22年までの税引後営業利益計(予測値)から,LED以外の資本の期待利益を控除して算出した超過収益額2652億円をベースにしたようだ。教授はこのように主張された。
反対に,研究開発に投資した企業が権利を得るべきだという意見もある。教授の意見広告は,特許庁の法改正が,仕事上の発明を原則的に会社のものに帰属させることに反対だ。会社に帰属させると,社員の意欲を削ぐ心配がある。
燃料電池もLEDも特許で得られる利益が権利の値段になる。それは次のように計算されると思われる。
  他者が実施するとき  独占の利益=実施料相当額(特許製品の売上げ×実施料率)
  自分が利用するとき  独占の利益=超過利益×仮装実施料率×各発明の寄与率
職務上の発明が特許されると,会社は無償の通常実施権を取得し,特許発明を自由に実施できる。

東京地判平成16年1月30日の要旨と検討
 従業者によって職務発明がされた場合,従業者は「相当の対価」を請求できる。勤務規則が会社に譲渡すると定めていれば,「契約」とみなして会社に譲渡したと解される。①職務発明の対価,②使用者の受けるべき利益の額,使用者の貢献度が次の問題となる。
 まず,使用者は無償の通常実施権(特許法35条1項)を取得する。使用者が当該発明に関する権利を承継することによって受けるべき利益(35条4項)は,発明を実施して得られる利益ではなく,特許権の取得により当該発明を実施する権利を独占することによって得られる利益(独占の利益)と解される。
独占の利益とは,①使用者が当該特許発明の実施を他社に許諾している場合には,それによって得られる実施料収入がこれに該る。
②他社に実施許諾していない場合には,特許権の効力として他社に特許発明の実施を禁止したことに基づいて使用者があげた利益がこれに該る。②の場合,使用者が発明を実施した製品を製造販売しているときは,他社に対する禁止の効果として,実施許諾していた場合に予想される売上高と比較して,これを上回る売上高(超過売上高)がこれに該る。すなわち,
  1.超過売上=他社に実施許諾してないときの売上-実施許諾したときの売上
使用者自身が発明自体を実施していなくても,他社に発明の実施を禁止した効果として,発明の代替技術を実した製品の販売について使用者が市場において優位な立場を獲得しているなら,それによる超過売上高に基づく利益は,独占の利益に該る。
  2.超過売上=市場で優位に立つ売上-優位に立たない売上
③他社に実施許諾していない場合は,仮に他社に実施許諾した場合を想定して,その場合に得られる実施料収入として,独占の利益を算定することも考えられる。
 3.独占の利益=他社に実施許諾したと想定した場合の実施料収入

従業者と使用者との関係はどうなのか。
従業者の貢献度を数値化するのである。会社の職務として発明を行い,そのために会社が研究資材・資金や従業者への給与を負担し,職務発明の完成に貢献する。だから,発明者と会社との衡平を考慮し,発明者が特許を得たときは,会社が通常実施権を得る。発明者が会社に職務発明について特許権を譲渡したときは,相当の対価の算定に際し,会社の貢献度を考慮する。会社の貢献度を算出する事情としてはいろいろ考慮される。発明にあたって会社が負担した費用(研究費,資材,発明者の給与等),発明完成までの事情,権利取得過程,事業化の過程等も参酌される。こうして,裁判所の特許独占の利益の考え方が示された。
この判決で,会社の超過売上高は売上げの少なくとも2分の1以上あるとされた。会社の特許独占の利益は,算式1による「2分の1」か,又は算式3の実施料収入となる。
1の算式は,製品への発明の寄与率が明らかでなく,将来の設備投資や資金調達も必要なので採用しにくい。実施料収入の方が計算しやすい。よって,3の算式を採用する。こうして,実施料率を20%とし,実施料額を算定した。
会社の独占の利益は1兆2086億円×0.5×0.2=1208億円 発明者の貢献度はその50%=604億円   
意見広告との違いは明らかである。意見広告は,発明にかかる製品の利益が特許の対価の計算の出発点になっている。もし世界が受ける特許発明の利益が独占の利益計算の基礎ということになると,職務発明は人類に対し,多大の恩恵と同時に巨額の経済的負担をもたらすことになる。
特許事件は開発途上の思考と数字操作(数学)から成り立っている。法が具体的に適用される過程,どれが正解かは,いまだ世界が共有できる理解を得るに至っていない。

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Hello every body my name is MRS MARY CLARK, am from France, I just want to share

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