Controlling Patent Abuse in Korea
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Controlling patent abuse should be discussed along different types of remedies. Along these lines, capability to produce will serve for the lost profit claims, and possibility of utilization will play a role in reasonable royalty claims. With regard to provisional injunction claim, which occupies most patent abuse cases, ‘avoidance of a significant damage, or preventing an imminent danger’ requirement should be interpreted strictly. The most troublesome type of patent abuse is normal injunction claim. Recently, Korean Supreme Court issued its landmark decision in a trademark law case. This provides us with a new paradigm of understanding abuse of intellectual property. In addition, Korean Supreme Court’s precedents on Trust Act Art. 7 is also a good basis for controlling patent abuse since these decisions suggest that acquisition of patent for litigation could fall into this provision.Patent abuse is a newly emerging issue in the intellectual property law of Korea. The most effective and proper solution should be sought in the context of the entire Korean legal system.
Abstract
Controlling patent abuse should be discussed along different types of remedies. Along these lines, capability to produce will serve for the lost profit claims, and possibility of utilization will play a role in reasonable royalty claims. With regard to provisional injunction claim, which occupies most patent abuse cases, ‘avoidance of a significant damage, or preventing an imminent danger’ requirement should be interpreted strictly. The most troublesome type of patent abuse is normal injunction claim. Recently, Korean Supreme Court issued its landmark decision in a trademark law case. This provides us with a new paradigm of understanding abuse of intellectual property. In addition, Korean Supreme Court’s precedents on Trust Act Art. 7 is also a good basis for controlling patent abuse since these decisions suggest that acquisition of patent for litigation could fall into this provision.Patent abuse is a newly emerging issue in the intellectual property law of Korea. The most effective and proper solution should be sought in the context of the entire Korean legal system.
참고문헌 (31)
- "This decision was rendered on June 7, 2005, and the Case number was ¡°2005Kahap1225" (2005), ¡± This opinion was not published
- "KIPO¡?s web site above says the number of Korean patent applications ranked fifth in 2002" (2002)
- ¡°CHOSUN ILBO,¡± which is the largest daily newspaper company, "reported that ¡?Korean corporations are vulnerable to patent trolls. Threats of big amount of royalty by patent trolls are becoming real even in Korea.¡? This article enumerated Digital Times, IPia, a solo inventor as patent trolls, and added some foreign ones like NPT Inc., Forgent Networks, MercExchange" (2006), CHOSUN ILBO
- Robert P. Merges, "¡°Introductory Note To Brief of Amicus Curiae In eBay v. MercExchange", 997, pp.997~
- Howard Susser, "¡°Supreme Court Ends Special Treatment For Patent Injunction this definition added that not all non-manufacturing entities are considered ¡°trolls prefer to license their technology", ¡± and many in(vating patent owners), pp.~9, including universities and many other persons and institutions
- ¡°The Supreme Court 2005 Term, "Availability of Injunctive Relief", pp.120~
- Sungjoon Choi, "¡°Is voidness of patent defense available under the principle of prohibition of abuse of right?", 100, pp.129??136~ (2006), Pakyoungsa
- "See Korean Supreme Court decision 2000Da69194 delivered" (2004), panryegongbo
- Korean Civil Act article 2, "The exercise of rights and the performance of duties shall be in accordance with the principle of trust and good faith No abuse of rights shall be permitted"
- Dae-Hwan Koo, "Information Technology and Law", pp.270~271 (2005), Pakyoungsa
- "KIPO grants patents on business methods invention only when they are software-based ones"
- Kennedy, "Justice Kennedy opined that injunctive relief may have different consequences for patents over business methods since the potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test 1837 at 1842", pp.126~, eBay Inc
- Dae-Hwan Koo, "Direct Protection of Innovation that are all aiming at other type of protection than traditional patent system considering features of computer software innovation"
- Korean Civil Act Article 750, "Definition of Torts Any person who causes losses to or inflicts injuries on another person by an unlawful act wilfully or negligently shall be bound to make compensation for damages arising therefrom"
- Korean Civil Execution Act Article 300, "Purpose of Provisional Disposition Provisional dispositions may also be effected in order to fix a temporary position against the disputed relation of right such provisional dispositions shall be effected specially in case where intending to avoid a significant damage on a continuing relation of right or to prevent an imminent danger"
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- the U, "With regard to this issue Court of Appeal for the Federal Circuit¡?s decision said that evidence of sales of the infringed product may suffice to show Panduit¡?s first factor this discussion was about lost profit damages", pp.1~1214
- Kennedy, "Justice Kennedy pointed out that injunctive relief may be employed as a bargaining tool to charge exorbitant fees and may not serve the public interest 1837 at 1842", pp.126~, eBay Inc
- "A patentee or exclusive licensee may demand a person who is infringing or is likely to infringe on his patent right to discontinue or refrain from such infringement A patentee or an exclusive licensee acting under paragraph may demand the destruction of the articles by which the act of infringement was committed including the products obtained by the act of infringement in cases of a process invention for manufacturing the products the removal of the facilities used for the act of infringement or other measures necessary to prevent the infringement"
- "this interpretation is the one accepted by commentators not by the Korean Courts Korean Supreme Court has not decided on whether the court shall ¡?automatically¡? issue injunctions we may expect different conclusion of the Korean highest court"
- Yoon-Jik Gwak, "Commentaries of Korean Civil Act vol"
- "See Supreme Court decision 2003Da40422 delivered on Nov, 27, 2003" (2004), Panryegongbo
- "Supreme Court decision 94Do3287 delivered on November 7, 1995", pp.3954~ (1995), Panryegongbo
- Sang Jo Jong, "¡°Conflicts between Registered Trademark Law and Unfair Competition Principles¡±", 25, pp.507~511 (2003)
- Sungjoon Choi, "¡°Scope of Trademark Act srt. 7 paragraph (1)-4¡±", 2(2), pp.94~96 (2006), SNU Center for Law & Technology
- "Supreme Court Decision 2003Da20909, 20916 delivered on March 25, 2004", pp.693~ (2004), Panryegongbo
- Hyun Joong Kang, "Civil Procedure Law", pp.141~ (2002), Pakyoungsa
- Heung Sub Song, "¡°Criteria for Judging Trust for Litigation¡± Explanation of the Supreme Court Decisions Vol Prohibition of Trust Aimed at Evasion of Law Any person who is unable to enjoy a specified property right pursuant to Acts and subordinate statutes may not enjoy as a beneficiary the same benefit as he has such right" (1992)
- Hyung Ryong Jang, "Introduction to Trust Law" (1991)
- "http:", kpo2, pp.user.tdf?a=user.ip_info.ip_stat.BoardApp&c=1001&catmenu=m03 _04_04[DOI]