특허권의 간접침해와 국제거래에서의 시사점

Indirect Infringement on Patent Rights and Its Policy Implication in International Trade

Patent is an exclusive right. Therefore, whoever uses the patent right without authorization is responsible for the patent infringement. In cases in which the claim consists of several elements, the principle is that only the act using all the elements as a whole constitutes patent infringement, and using only part of the elements is not considered as an act of patent infringement. However, if partial infringement on a patent right is always excluded from patent protection, it can result in certain valid patent useless and the patent holder can not be substantially protected. Therefore, many countries regulate such an act as an instance of indirect infringement or secondary infringement under their patent laws. This article reviews the provisions for indirect infringement under the Korean Patent Act and recent leading cases thereto. In case the places of direct infringement and indirect infringement are different, if direct infringement occurred abroad but indirect infringement occurred in Korea or vice versa - in accordance with the provisions of the law that vary from country to country, the same issues may lead to different conclusions. This article explores this diversity from a comparative perspective focusing on the U.S. patent law, the Japanese law, the European law and the Chinese law as a representative law with the Korean patent law in the center of the comparative analysis.