불완전이용발명의 이용관계 성립 여부에 관한 고찰

Abstract

Where working a patented invention would infringe another person's patented invention under an application filed before the filing date of the patent application, the patentee may not work the patented invention commercially without a license from the owner of the earlier patent. If the other party refuses permission without justifiable reasons or permission is impossible to obtain, the patentee may request a trial for the grant of a non exclusive license with the scope necessary to work the patented invention. Thus, the patentee can work his patented invention and the owner of the earlier patent can reap royalty from the patentee. However, it is questionable whether working a patented invention having not all of the elements of the earlier patent could infringe the earlier one. Basically infringement happens when a patented invention having all of the elements (or equivalents) of the earlier patent works. Proponents argue that because omitting unimportant elements is easy to a person in the field and it is impossible to write patent claims anticipating all occasions, infringement should be acknowledged. Opponents assist that because the scope of right of a patented invention is determined by its claims and every element of a claim is essential to the invention, working a patented invention omitted any of the elements in a claim of the prior patent does not constitute infringement. They criticize proponents in that it is not logical that omitted elements should be ‘relatively unimportant elements’ because every element in a claim is essential to the invention and there is no element which is essential but unimportant. This paper examines the above issue in terms of principles of claim interpretation and the patent system.