특허법 구조 분석을 통한 '지식 경계' 명확화에 대한 연구

The structure of patent law for the clarification of knowledge boundaries and its implication

Patent is a property rights, therefore some degree of certainty in the content and application of patent law is necessary to work as a legal rights. Patent law has developed structures to increase predictability and certainty. A special language so called 'claims' had developed and some terminologies such as 'comprising' has comparatively clear meaning in legal aspect. However, the object of protection for patent law is knowledge which is inherently abstract. The scope of protection of a patent is defined by a language. To some extent, the nature of language and the purpose of patent claims make absolute clarity impossible. Ambiguity is present at all levels of process such as private drafting of invention, agency review, and judicial resolution of both administrative and private disputes. This article identify numerous factors that create indeterminacy in the patent system. This Article seeks to deepen the determinacy debate by comprehensively examining sources of uncertainty in patent law. It also attempts to explain why uncertainty is inherent in the patent law. In patent law, lack of determinacy has the potential to undermine a fundamental goal of the patent system. Patent law suffers from an unreasonably high level of uncertainty or unpredictability that threatens the patent system's ability to stimulate innovation. Legal uncertainty is inevitable in a patent rights system. Therefore, remedies for patent infringement should reflect the legal uncertainty of patent system. Legal uncertainty and potential abuse of enforcement measures make criminal punishment and interlocutory injunction unreasonable remedies for right holders