공유특허권의 지분에 대한 무효심판청구의 문제 - 대법원 2015. 1. 15. 선고 2012후 2432 판결을 중심으로 -

Abstract

Restrictions concerning joint ownership of patent right also exist in a request for the trial under the Patent Act. When a petition is filed for trial against patentees who jointly hold a patent, all such joint-holders shall be made defendants[Article 139(2) of the Patent Act] and When joint-holders of a patent or an entitlement to a patent file a petition for trial onthe jointly-held right, all joint-holders shall file the petition jointly[Article 139(3) of the Patent Act]. On the other hand, possibility of a request for the invalidation trial against the share of joint ownership of patent right can come into question despite of the aboveprovisions. Supreme Court Decision 2012Hu2432(hereinafter referred to as “the subject decision”) decided that a request for the invalidation trial against the share of joint ownership of patent right has an unlawful defect. It is reasonable that the subject decision didn’t accept a request for the invalidation trial against the share of joint ownership of patent right by acknowledging the unity of disposition of a patent as the object of the invalidation trial. The above decision accords with being decided that all joint-holders shall be parties of invalidation suit or invalidation trial in USA, Germany and Japan. On the other hand, according to Article 99-2 of the revised Patent Act, it is now possible for a legitimate right-holder to directly claim the transfer of the share of the joint ownership of patent right from Unentitled share-holders without the need of a request for the invalidation trial against joint ownership of patent right. In conclusion, a request for the invalidation trial against the share of joint ownership of patent right becomes impossible by the subject decision and practical advantage got to disappear in the discussions on this subject by that provision of the revised Patent Act.