已有关于合诉角度利用博弈论对专利侵权纠纷和解的影响分析。实际上，代表性国家形成了合诉和分诉两种诉讼制度，不同的制度对专利侵权纠纷和解的影响并不相同。从而分别构建合诉与分诉制度下，专利权人和潜在侵权人之间专利诉讼的两回合博弈模型，通过逆向归纳法从成本-收益角度对博弈模型进行求解及分析。结论表明：潜在侵权人和解率与和解金额负相关，而与专利权人胜诉后的期望收益正相关；专利权人撤诉率与和解金额以及潜在侵权人和解费用负相关，而与潜在侵权人诉讼费用正相关。与此同时，在分诉博弈模型中，潜在侵权人和解率还与专利权人赔偿诉讼费用负相关，专利权人撤诉率与潜在侵权人在侵权裁判后的市场损失正相关等。因此，我国应加大专利侵权损害赔偿金额、适时借鉴分诉制度以及企业应当加大创新研发投入。

There has been an analysis of the impact of joint litigation on the settlement of patent infringement disputes from the perspective of game theory. In fact, representative countries have formed two litigation systems: joint litigation and split litigation. Different systems have different effects on the settlement of patent infringement disputes. This paper constructs a two-round game model of patent litigation between patentees and potential infringers under the system of joint litigation and split litigation respectively, and solves and analyzes the game model from the perspective of cost-benefit through reverse induction. The conclusion shows that: the settlement rate of potential infringers is negatively related to the settlement amount, but positively related to the expected income of the patentee after winning the case; the withdrawal rate of the patentee is negatively related to the settlement amount and the settlement cost of the potential infringer, but is related to the potential infringer's litigation The cost is positively correlated. At the same time, in the split litigation game model, the reconciliation rate of potential infringers is also negatively related to the patentee's compensation for litigation costs, and the patentee's withdrawal rate is positively related to the potential infringer's market losses after the infringement judgment. Therefore, the following measures should be taken: to increase the amount of damages, and to use the split litigation system for reference in a timely manner, to increase innovation and research and development for enterprises.

D923.4；F272.3

国家知识产权局项目“知识产权确权制度中行政权与司法权的配置” （20191126697）