특허권 남용에 대한 고찰

Abstract

On Korean Patent Act, it is not easily decided by the courtwhether a patent is valid because procedures of infringement andinvalidity of patent are differentiated. Korean Supreme Court has ruled that it would be patent abusewhen a patentee use his/her patent right even though there is aindisputable cause of invalidity in that patent. Therefore, in Korea, therehas been researches focused on whether there is a patent abuse onpatent with invalid causes based on the precedent of Korean SupremeCourt. However, there are lack of studies when rules of patent abuse areenacted and vanished and whether standards of patent abuse on fairtrade sector are proper. In addition, even though there are studies on patent abuse, thesestudies has been restricted to focus only on there are invalid causes ofpatent or patent trolls use patent for their profits. By considering ofdistinctive purpose of Patent Act and Fair Trade Act, standards of patentabuse should be regulated not by Fair Trade Act but by Patent Act. Furthermore, to enact standards of patent abuse, we shouldconsider not only Japanese Patent Act but also in comparison to abuseof a right in Civil Law. In that case, we should divide invalid causesbase on subdivisions of patent abuses into a case there is a cause of bad faith to obtain patent, a case there is a cause of no willing to use patent,and other cases. On effectiveness of patent abuse, we should consider to divide intosending warning letter, filing preservative procedure, filing lawsuit onthe merits, and other. Then, we should analyze distinction oneffectiveness of each action.