특허침해에 있어서 공동불법행위 책임에 관한 고찰

Abstract

The judgment of patent infringement is decided by the various rules, for example, direct infringement, indirect infringement, or incomplete infringement, on the ground of all elements rule. This judgment of patent infringement is not based on the case that plural entities exploit altogether the elements of patent claim, but the case that one entity exploits all elements of patent claim. The former has the problem whether the joint tort liability could be applicable to the case, because it does not correspond to the all elements rule. Considering the prior standard of patent infringement, joint tort liability, and the cases of joint tort, I would like to suggest one test with regard to the judgment of patent infringement when plural entities exploit respectively some elements. In principle, the exploitation of some elements by plural entities will not be applicable to the patent infringement in principle on the ground that all elements rule is most fundamental basis of patent infringement. Further, one entity among plural which exploits only nonessential element(s) would not be patent infringer, but the other entity which exploits essential element(s) could be incomplete infringer. In the case that one entity induces the other entity (contractor) to exploit one or some elements of patent claim, it is desirable that just one entity will be liable for patent infringement in view of the exploitation of one entity as an inducer or supervisor. In addition, in the case that one entity induces the other entity to exploit all elements of patent claim, just one entity will be liable for patent infringement or joint tort because he actively induces the other entity to infringe a patent. In Korea, joint tort liability on the civil law could not be uncritically applicable to the patent infringement, because it is required for the respective tort. Therefore, it is recommended that judgment of patent infringement is preferentially decided by the prior rule as much as possible, with exceptional cases that superior one entity inducing the other entity to exploit some or all elements of patent claim would be liable for patent infringe or joint tort.