특허법상 구체적 행위태양 제시의무에 대한 검토 - 법 개정 제안을 포함하여

Abstract

Art. 126-2 of Patent Act (Obligation to Present Specific Type of Behavior) is taken somewhat unfamiliar to our litigation culture and the courts also appear reluctant to utilize the provision in practice hitherto. Nonetheless, Art. 126-2 has its explicit merits such as facilitating remedies for the right holder, accelating suit procedure, operating as a preliminary or complementary procedure to the Order of Data Submission(Art. 132). Hence it is necessary to operate the provision properly, taking advantage of the its legislative intent. Regarding Art. 126-2, there has been few guidelines for the court to refer to. Paragraphs 2 and 3 of Art. 126-2 provide for an In-Camera procedure to determine the adequacy of defendant’s obligation to present specific type of behavior. However, Art. 126-2 contains a clear legislative error, leaving the defendant the right to refuse data submission, which conrtavenes to the fundamentals of In-Camera procedure. Some legislative inadequacies, such as the omission of confidentiality order (Article 224-3 of the Patent Act) to protect the defendant's trade secrets also intrigues the reluctance to utilize Art. 126-2. Taking these issues into account, this article presents the standard of interpretation and application guideliones for Art. 126-2. This article also proposes some amendment of relevent provisions of Patent Act.