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초록

영어

According to the patent law, only when the invention claimed in the second patent which cannot be exploited without infringing another patent (“the first patent”) involves an important technical advance of considerable economic significance in relation to the invention claimed in the first patent,non-exclusive use of the first patent can be allowed to the patentee of the second patent. On the other hand, patents are given to an invention when it is industrially applicable, new, and non-obvious, disclose the invention enough to be easily practiced by a person with the ordinary knowledge in the related technology, and write claims clearly and concisely fully supported by the specification. Therefore, even though an invention of using the first patent is qualified as being patented and is patented, if the second patent invention has not an important technical advance of considerable economic significance in relation to the invention claimed in the first patent, the patentee of the first patent cannot practice his invention as long as the first patent owner would not permit the second patent owner to use the first patent. This makes a patentee cannot practice his patented invention only because his invention has not 'an important technical advance of considerable economic significance.'This is absurd because even though the second patent owner has given the technical information of his invention to the public and received a patent, he cannot practice his invention and practically have not any chance to recoup his investment. To cure this absurdity, I propose that the clause of the patent law regarding the chance to non-exclusive use right should be eliminated.

목차

Ⅰ. 서론
 Ⅱ. 사회경제적 계약관계로서의 특허제도와 특허요건의 의미
  1. 사회경제적 계약관계로서의 특허제도
  2. 사회경제적 계약관계의 관점에서 본 신규성 판단
  3. 사회경제적 계약관계의 관점에서 본 진보성 판단
  4. 사회경제적 계약관계의 관점에서 본 명세서 기재 심사
  5. 소결
 Ⅲ. 특허되는 발명과 통상실시권 허여 대상 요건의 불일치
  1. 통상실시권 허여의 요건
  2. 특허요건과 특허실시권 허여 요건의 불일치
 Ⅳ. 사례 검토
  1. 균등물의 이용관계
  2. 통상실시권 허여 여부 판단
  3. 문제의 분석
 Ⅴ. 결론
 참고문헌
 

키워드

통상실시권 이용발명 상당한 경제적 가치가 있는 중요한 기술적 진보 산업상 이용가능성 진보성 신규성 누적적 기술혁신 연속적 기술혁신 TRIPs non-exclusive use the first patent the second patent important technical advance of considerable economic significance industrial applicability inventive step novelty TRIPs cumulative innovation sequential innovation

저자

• 구대환 [ Koo, Dae-hwan | 서울시립대학교 법학전문대학원 부교수 ]

참고문헌

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