Earticle

초록

영어

Under the doctrine of patent exhaustion or first sale rules, once a patent owner has sold, without limitation, an article that fully embodies a patented invention, he has no further right of exclusion for the use or resale of the article against the purchaser. That is, first authorized sale of a patented product places the article outside the patent owner's right of exclusion. The reason why a patentee cannot enforce against the purchaser is that the patentee's exclusive right of embodied patent in the product was used up once he has sold or licensed it. This study, therefore, has scrutinized almost all cases involving with patent exhaustion issues in the United States and Japan; as a result, it may provide clear guidances and standards for application to patent exhaustion in patent infringement suits. The important limitation on the doctrine of patent exhaustion is that it does not apply if the patent claims do not cover/read the product sold by a patentee or its licensee. Eventually if an alleged claim does not covered or read the products sold, the lawsuit would be failed since it does not create patent infringement. This is why the claim(s) to de covered a certain products. In addition, in LG Electronics., Inc. v. Asustek Computer, Inc. the courts held that the apparatus claim was exhausted but the method claim was not exhausted. That is, the doctrine did not apply to the asserted method claims because the claims could not read on the sold product. Notwithstanding a steady negative holdings as to method claims, this study would like to suggest that any method claims which are substantially identical to apparatus claims be exhausted. In addition, a flowchart which is pertinent to the suggestion has been showed apprehensively in this paper.

목차

Ⅰ. 머리말
  1. 문제의 제기
  2. 權利消盡論의 意義와 學說의 檢討
  3. 消盡法理의 理論的根據摸索
 Ⅱ. 권리소진론의 적용요건
  1. 정당한 權利者로부터 讓渡
  2.「販賣된 製品」에 관한 要件
  3. 特許請求項의 要件
  4. 消盡을 制限하는 條件이 없는 販賣(Unconditionalsale)
  5. 例外
 Ⅲ. 權利消盡適用節次
  1. 일반적 적용절차
  2. 비판 및 제안
 Ⅳ. 權利消盡의 효과
  1. 追及力의 상실
  2. 權利의 相對的消滅
  3. 權利消盡의 範圍
 Ⅴ. 맺는말
 참고문헌
 Abstract

키워드

특허소진론 특허침해 침해소송 비침해 항변 장치청구항 방법청구항 Doctrine of Patent Exhaustion Patent Infringement Patent Litigation Defense of Non-Infringement Apparatus Claim Method Claim

저자

• 김길원 [ Gil-Won Kim | 한국전자통신연구원(ETRI) 선임기술원, 법학박사 ]

참고문헌

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