Earticle

초록

영어

Korea has had a unique system, called negative patent scope declaration trial, through which a requester may ask whether a proposed or planned act would be in the scope of the patent right. Like a normal declaration action before a court, interest of declaration shall be recognized in the trial as well. In that regard, there exist different opinions on the proper level of declaration interest. Based on the belief that the most important function of the negative patent scope declaration trial is to prevent future patent disputes, this author contends that declaration interest must be flexibly and widely recognized in the trial. Those who have different opinions apprehend that such flexible and wide recognition enables a requester to misuse the trial. In other words, a defendant of a patent infringement litigation may specify a declaration target invention differently from his actual products and getting a favorable decision from the trial and then by submitting the decision may try to deceive the civil court. Based on the following reasons, this paper proclaims that the apprehension on such misuse is much exaggerated. Firstly, current system which demands the requester clarify whether the declaration targer invention is being actually worked or is being planned to work makes such misuse difficult. Secondly, the patentee himself can prevent such misuse by admitting that he does not have any intent to raise a patent infringement litigation against the declaration target invention specified by the requester and by making the trial dismissed lack of declaration interest.

목차

I. 서론
 II. 확인의 소 법리의 특허 권리범위확인심판에의 적용
  1. ‘확인의 이익’의 필요성
  2. 확인의 이익 판단
  3. 확인의 소의 입법 정책성
  4. 법원에 대한 특허권 비침해 확인의 소
  5. 침해소송 후의 권리범위확인심판
 III. 소극적 권리범위확인심판에서의 확인의 이익에 관하여 판단한 판례의 검토
  1. 제한설(확인대상발명을 장래 실시할 가능성이 있는 경우에만 확인의 이익을 인정하는 입장)을 적용한 판례
  2. 무제한설(장래 실시할 가능성이 없지 않는 한 확인의 이익을 인정하는 입장)을 적용한 판례
 IV. 소극적 권리범위확인심판에서 확인의 이익을 폭넓게 인정하여야 하는 이유
  1. 남소(濫訴) 가능성에 관한 검토
  2. 침해소송에서의 악용 가능성에 관한 검토
 V. 결론
 참고문헌
 

키워드

소극적 권리범위확인심판 확인의 이익 청구인의 악용 확인대상발명 예정된 행위 실시계획 egative Patent Scope Declaration Trial Declaration Interest Requester’s Misuse Declaration Target Invention Proposed Act Work Plan.

저자

• 정차호 [ Jung, Cha-Ho | 성균관대학교 법학전문대학원 교수. ]

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