Earticle

초록

영어

The Republic of Korea has had a patent scope declaration trial system. Some arguments to abolish the system have been continually raised on the following reasons: a holding of the trial has no binding effect; character of the trial is unclear; similar systems in other countries are rare. This paper demonstrates Korea’s patent scope declaration trial system is very useful for patent customers based on the following five reasons. Firstly, the patent scope declaration trial has been much loved by customers. Regarding patent and utility model scope declaration trial, each year more than 500 requests have been steadily filed. Though 11% of the requests were related to patent infringement litigations, remaining 89% of the requests were not related to such litigations. Therefore the trials have been used to confirm success of designing around, to establish powerful information for negotiation, etc. Secondly, the United Kingdom non-infringement declaration system is being emphasized recently. The UK Intellectual Property Office, based on the belief that the system is useful to customers, develops and expands the system. Thirdly, because the approval-patent linkage system was completely enforced from March 15, 2015, the scope declaration system has become more useful. A patentee may request a positive scope declaration trial to enjoy benefits of automatic stay system, and a generic drug developer may request a negative scope declaration trial to acquire generic exclusivity. Fourthly, two bills which endow the Patent Court exclusive jurisdiction on appealed patent cases are pending at the Korea National Assembly in June 2015, and the bills are highly likely to be passed. Upon the passage, a decision of the Patent Court in a trial revocation litigation appealed from a decision entered by a patent scope declaration trial will have deciding effect against a patent infringement appeal case, therefore a patent scope declaration trial and a subsequent trial revocation litigation will be more important. Fifthly, a bill which introduces damages (up to three times) enhancement system into the Korea Patent Act is pending at the Korea National Assembly in June 2015. Even though it is not likely for the bill to be passed in this term, this author believes and hopes that the bill be passed in the near future. Under the damages enhancement system, a company which intends to prevent willful infringement finding may more actively exploit the scope declaration trial. Based on the above five reasons, the scope declaration trial may keep enhancing its popularity among patent customers. From now on, being away from useless discussion on usefulness of the system, we must try to develop it as a more user-friendly system.

목차

Ⅰ. 서론
 Ⅱ. 권리범위확인심판 활용도의 실증적 검토
  1. 전체 심판에서의 권리범위확인심판의 비중
  2. 특허·실용신안 권리범위확인심판 청구건수
  3. 침해소송과 권리범위확인심판의 관계
  4. 내국인을 위한 권리범위확인심판
  5. 중소기업을 위한 권리범위확인심판
 Ⅲ. 주요국의 권리범위확인심판 유사 제도
  1. 오스트리아의 특허청에 의한 권리범위확인 제도
  2. 영국의 특허청에 의한 비침해확인 제도
  3. 영국의 비침해판정 제도
  4. 일본의 판정제도
 Ⅳ. 허가특허연계제도와 권리범위확인심판
  1. 허가특허연계제도 개요
  2. 신약 특허권자에 의한 적극적 권리범위확인심판의 청구
  3. 복제약 신청자에 의한 소극적 권리범위확인심판의 청구
  4. 허가특허연계제도에 따른 심판 청구 통계
 Ⅴ. 특허법원 관할집중에 따른 권리범위확인심판의위상 제고
  1. 특허법원 관할집중 법 개정안
  2. 권리범위확인심판의 위상 제고
 Ⅵ. 고의침해를 방지하는 수단으로서의 소극적권리범위확인심판
  1. 손해배상액 증액제도 도입 법 개정안
  2. 고의 또는 중대한 과실의 판단
 Ⅶ. 결론
 참고문헌
 

키워드

특허 권리범위확인심판 무용론 유용론 실증적 증거 허가특허연계제도 손해배상액 증액제도 구속력 Patent Scope Declaration Trial Usefulness Theory Empirical Evidence Approval-Patent Linkage System Damages Enhancement System Binding Effect.

저자

• 정차호 [ Jung, Cha-Ho | 성균관대학교 법학전문대학원 교수 ] 주저자
• 이혜라 [ Lee, He-Ra | 성균관대학교 법학전문대학원 박사과정 ]

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