특허제품의 변경에 따른 사용과 특허권 침해

Abstract

When an article is purchased and used by the purchaser, the patent right is generally interpreted to be exhausted by the first-sale. This kind of interpretation is more or less the same throughout the world. When the purchased product is modified beforehand to be used, the use of the product may be prohibited depending on the extent of the modification. The legal framework for the distinction, however, is not the same throughout the representative countries such as Korea, Japan, and the United States. In Korea, framework of make/use is adopted for the analysis. When the modification is legally estimated to be a use of the product, the use of the product is allowed; when the modification is legally estimated to be a make of the product, the use of the patented article is prohibited. In the United States, however, a different framework is adopted for the analysis: permissible-repair/prohibited-reproduction. Japan distinguishes itself among the countries to use a framework of exhaustion/non- exhaustion criterion. This paper critically reviews representative precedents in each of the countries regarding patent infringement by the use of a patented article accompanied by the modification of the article. The frameworks of the countries are analysed and compared with other frameworks. The frameworks of Korea and the United States are estimated to be basically compatible to each other albeit the minute differences in the criteria for the distinction. Japan’s exhaustion/non-exhaustion framework is regarded to be more basic than those in other countries. But one of the two criteria specifying the case when the patent right is not exhausted is not deemed to be precise enough to be applied without ambiguity especially to the expendable articles.