모인출원에 대한 정당한 권리자의 구제 -정당한 권리자의 이전청구의 허부를 중심으로-

Abstract

When an invention derived from an authentic inventor is patented, the entitled person can recover his lost right through the process provided by the Korean Patent Act. The process, however, should be initiated within the prescribed period, which sometimes cannot be abided by, which results in the loss of right of the entitled person. The entitled person can also try to recover his lost right by requesting the transfer of the patent to the court. Up to now, the opinion on whether the request should be allowed or not, and if so, what should be the standard for the allowance, is not well established. The recent decisions by the Supreme Court of Korea says clarifying the standard that the entitled person, in principle, can pursue the recovery of his lost right by the process provided by the Korean Patent Act, while he can also request the transfer of the derived patent as long as the patent is based on a transfer contract which is found to be void or to be cancelled. This paper addresses the ways by which the entitled person can recover his lost right such as the process provided by the Korean Patent Act and transfer request to the court for the derived patent, comparing the pros and cons of the processes, and try to show more plausible way for the recovery of the lost right of the entitled person.