특허권의 부당한 행사에 대한 규제 － 비실시특허권자의 특허침해금지청구권의 남용을 중심으로 －

Abstract

In today's knowledge-based society, an invention, the product of the creativity of human beings, is the source of the most important assets and such creativity has lead innovation in the community. Therefore, the ultimate purpose of intellectual property law can be described to be as the promotion of 'public interests' by constant innovation. However, focusing on legal claims on the owner's rights of patent rather than a means of innovation, they force the related parties to stand in the court waging the wasteful patent war instead of making efforts in laboratories or offices to develop and innovate technology. One of the most controversial issues is patent misuse of NPEs. The patent owner who do not have production facilities and sales organizations can abuse of request for injunction against infringement to obtain huge profits through the litigation, namely to impose an excessive royalty. Korea Patent Law §126(1) provides that patent owners or exclusive licensees can claim for in case that someone infringes or is likely to infringe his right. Also §126(2) reads that patent owners or exclusive licensees can claim for the shutdown of things setting up the infringement, the elimination of the facilities provided for the infringement and the necessary actions for the prevention of infringements. It, however, doesn't have equity rule like US patent law §283. So far it doesn't seem that Korean courts have considered patent owner's act as a patent abuse and rejected his claim for the prohibition of infringements. Thus, in such cases, we can apply the general law, the civil law that is complementary to the patent law. In case that a patentee exercises his rights out of the purpose of patent law, courts should ask the other party only to prove the objective requirements that there is significant imbalance between right owner's interests and the other's harmed interests and have the judgement considering the interests of the protection of individual right and all the surroundings. Therefore, if someone like patent troll claims for the prohibition of infringements to pursuit interests out of scope of patent law, his claims should be denied under abuse of right rule in the civil law.