특허침해소송에서의 권리남용의 적용에 대한 비판적 고찰

Abstract

Recently, Supreme Court judged that a patent right has not been effective on the other worked invention by accepting defense of invalidation of patent registration based on a obvious absence of inventive step in a patent right infringement litigation(Supreme Court Decision No.2010Da95390; January 19. 2012). And this determination was also based on an abuse of right about exercising the patent right. In case Patent right has been granted against inventive step, a requirement for patent registration and a reason for invalidation of patent registration, this right should have been only determined as being invalid by a invalidation trial based on the former standard of determination. But Supreme Court has determined whether a patent registration was invalid or not about that in a patent right infringement litigation. In the above Court’s decision, it was determined that a patent didn’t have obviously inventive step and further exercising the patent right fell in an abuse of right in a patent right infringement litigation against the above Patent Law’s principle and the former Supreme Court decision. I think that the determination of the above Court like this is unreasonable, since determination of invalidation of patent and an abuse of right based on an absence of inventive step in a patent right infringement litigation is against Patent Law’s principle and official rights of administrative acts. Therefore, I think that it is proper to revise patent law or apply protest of free technology to patent right infringement case instead of abuse of right. In conclusion, this paper critically analyses and examines a number of problems from the subject case.