특허권 간접침해와 권리범위 확인심판

Abstract

Indirect patent infringement is related to an invention which is not within the scope of patent protection due to lack of some elements of patent but has a possibility of infringement in the future. It is deemed to be an infringement and regulated to protect patentees. A patentee, to claim patent infringement, can request a trial to confirm the scope of right as well as file an infringement suit in Korea. The former is about deciding whether a particular embodiment of a patented invention is within the scope of protection of a patent, and it requires comparison of technical ideas between an invention in question and a patented invention. Indirect infringement is about an invention which lacks some elements of patent or infringes some elements other than those of patent. In this regard, it needs to be considered if it is appropriate to seek a confirmation of indirect infringement in the process of trial to confirm the scope of right. If it is appropriate, details for the process need to be reviewed. Also trial to confirm the scope of right is an uncommon process which is adopted only in a few countries including Korea, and its disuse is under consideration due to the concern for overlapping of process and conflict of judgment in relation to infringement suit. Then we need to see the problem of the trial which is requested in regard to indirect infringement, and consider some solutions for it. Therefore, in this article, the problems of trial to confirm the scope of right will be covered, and general problems regarding indirect infringement will be reviewed by issues with Korean court cases.