특허권의 침해금지명령(Injunction)과 관련된 한-EU FTA의 내용 및 그 이행방안

Abstract

Korea and EU temporally signed Free Trade Agreement(FTA) at Brussels on the 15th of October, 2009. This Korea-EU FTA includes national treatment and market access for goods, trade remedies,technical barriers to trade, sanitary and phytosanitary measures,customs and trade facilitation, trade in services, establishment and electronic commerce, etc. In the field of intellectual property of Korea-EU FTA there are regulations embodying copyright, the rights related to patents, trademarks, service marks, designs, etc. Especially among such regulations there are those related to injunction, which are Injunction(10.48) and Alternative Measure(10.49). These regulations go hand in glove with Patent Troll that makes much money only through infringement lawsuits or transfers and licenses of patent rights without manufacturing goods. That is,Patent Troll is only patent owner but has no intention to manufacture goods. In this case, we come to grips with big problem whether Patent Troll should be protected by the Patent Act or infringer should be protected by the public interest. Of course, according to Korea-EU FTA, it is Korea's decision whether Korea would provide that at the request of the person liable to be subject to the measures of injunction, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures of injunction. However, in the case of ordering pecuniary compensation as alternative measures, Korea-EU FTA requests that infringer acted unintentionally and without negligence, execution of the measures in question would cause him or her disproportionate harm and pecuniary compensation to the injured party appears reasonably satisfactory. So this study aims for examining carefully contents of Korea-EU FTA regarding regulation of injunction and alternative measures,deciding whether we would accept such regulations in Korea-EU FTA and suggesting proposal to amend the Patent Act in case of accepting such regulations.