선발명 실시자와 후발명 특허권자의 법적분쟁 해결방안에 관한 연구

Abstract

There is prior invention principle and prior application principle in patent application. If person completing identical invention is plural in Korea, prior application principle allowing a person firstly filing patent application to give patent right regardless before and after on completing invention is selected. However there has case in which a part of businesses does not file invention under prior application principle but does file patent application after implementing such as produce, sell to evaluate technological value, further a part of business does not file patent application to give concern for more easily developing new improving technology by showing publishing technology for a third party and does implement to manage as know-how. Prior inventor managing as know-how cannot prevent from patent right achievement of subsequent inventor since managing in secret and implementing although prior inventor firstly invents and being not corresponding to published implement(including publicly-known technology) under the Patent Law. In this case patentee who file invention being identical with invention of prior inventor managing as know-how can file patent dispute such as injuction claim against infringement to implementor of prior invention. Accordingly implementor of prior invention should have prior-use right and for achieving prior-use right like this, strategy to have whole procedure like this in writing on completing invention is needed, and objective evidence material such as implementing business etc should be thoroughly managed/recorded.