특허침해 경고의 법률문제 - 비교법적 현황과 그 시사점을 중심으로

Abstract

This article focuses on the patent right holder’s liability upon wrongful threat of infringement. Many foreign countries regard groundless allegation of patent infringement as acts of unfair competition or torts, steadily reflecting such perception into statutes and court decisions. On the other side, in Korea, the litigations or preliminary injunctions upon wrongful infringement allegation have been the main concern of courts and academic commentators, while the ‘warning’ has been deemed an adjunct of aforementioned litigations or injunctions. However, warning of infringement happens very often and easily in practice, and its effects are even more serious than those of litigations. Hence, it is desirable to establish sound and concrete standards to impose liability against unjustified patent infringement threat to prevent its abuse. This article provides comparative reviews on how Germany, France, England, Japan and the U.S. control unfair threat of infringement. Further, this article analyzes a number of Korean cases about groundless threat of infringements and courts adjudications on such cases. Based upon such analysis, this article extracts and categorizes possible elements to determine liability for groundless threats. In conclusion, this article proposes amendments to the Unfair Competition Act of Korea in order to encompass groundless threat as a type of unfair competition deeds.