Earticle

초록

영어

If the grounds for invalidation exist in the patent right, it is desirable to restrict exercising patent right. The method to apply defense of abuse of right to civil law is conceivable to restrict exercising patent right. However, in exercising patent right for which grounds for invalidation exist, applying defense of abuse of right to civil law is problematic in theoretic consistency. The method of recognizing defense of invalidity of patent is also conceivable. However, defense of invalidity of patent is also unacceptable in the present institution where trial for invalidation exists, because it is very likely that the issue of inconsistent judgment arises in infringement lawsuit and trial for invalidation. After all, the most feasible method is to recognize the defense of restricting exercise of right. This is a defense that can eliminate demerit of defense of invalidity of patent and highlight merit. In this case, two requirements are necessary to recognize the defense of restricting exercise of right. So-called requirement of obviousness, one means recognition that patent could be invalidated in the procedure of invalid judgment. The other, called requirement of non-existence of specific situation, means that there is no possibility of eliminating the grounds for invalidation of the patent.

목차

Ⅰ. 서론
 Ⅱ. 무효사유가 있는 특허권의 행사와침해소송에서의 처리
  1. 개설
  2. 학설상의 논의
  3. 판례의 태도
 Ⅲ. 무효사유가 있는 특허권의 행사와 권리남용론
  1. 논의의 전개순서
  2. 일반조항으로서의 권리남용 규정의 적용요건
  3. 특허권의 행사와 권리의 남용
  4. 무효사유가 존재하는 특허권의 행사와 권리남용론적용의 한계
  5. 권리남용항변의 대체항변 검토
 Ⅳ. 무효사유가 존재하는 특허권의 권리행사를제한하기 위한 요건
  1. 처음에
  2. 명백성 요건의 검토
  3. 특별한 사정의 검토
  4. 특허의 유효성 판단과 제3자효(쟁점효)
  5. 소결론
 Ⅴ. 결론
 참고문헌
 ABSTRACT

키워드

권리남용 특허무효의 항변 특허권 행사의 제한 일반조항 명백성 특별한 사정 제3자효 특허무효사유 특허권의 남용 특허침해소송 권리행사제한의 항변 abuse of right defense of invalidity of patent issue preclusion grounds for invalidation of patent abuse of patent patent infringement lawsuit defense of restricting exercise of patent patent infringement validity of patent

저자

• 안원모 [ Ahn, Won-Mo | 홍익대학교 법과대학 부교수. ]

참고문헌

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