특허권 간접침해 규정의 합리적인 해석방안 및 이를 위한 입법적 제언

Abstract

Korean Patent Act Article 127 describes that "in cases of the invention of a product, any person intends to conduct acts of making, assigning, leasing, importing, or offering for assignment or lease articles used exclusively for producing such products as his/her business, he/she shall be deemed to infringe on a patent right or an exclusive license." In addition, "in cases of the invention of process, any person intends to conduct acts of making, assigning, leasing, importing or offering for assignment or lease articles used exclusively for working such process as his/her business, he/she shall be deemed to infringe on a patent right or an exclusive license." As such, the provision of Korean Patent Act as to indirect infringement requires the exclusive usage of allegedly infringing articles and resulted in narrower range of indirect infringement compared with other countries'. 1973 revision of the Korean Patent Law introduced the above provision and it is still remained when introduced as it was, though there has been enormous development of technologies since then. In this article, I reviewed the provision and doctrine of indirect infringement under Korean patent Act and reached the conclusion that in comparison with the major nation’s indirect infringement of patent right, the scope of indirect infringement in Korea can be said to be rather narrow. However, at the Korean Patent Act, there is no a requirement of the existence of direct infringement for the indirect infringement, the real enforcement against indirect infringement is not far from that of other countries'. Meanwhile, the provisions as to indirect infringement in Korean Patent Act was designed mainly for indirect infringement of tangible product and cannot cover recent high technology such as computer-related one. Therefore I suggest to revise the provision and add two paragraphs to protect useful invention reasonably.