특허소진의 지역적 범위와 병행수입의 허용 여부

The Geographic Scope of Patent Exhaustion and Whether to Admit the Parallel Imports

Once a patented good is put on sale for the first time by the patentee or with through a 3rd party under patentee s consent, the patent right in relation to such a good will no longer be in effect. This is called the Principle of Patent Exhaustion or the First Sale Doctrine. There is no dispute in recognizing the Principle of Patent Exhaustion with in a single nation. On the other hand, Parallel Imports refer to patented goods that are imported at other countries through a route that is different from the importation course designed by the patentee. There have been conflicting opinions over the issue of the geographic scope of patent exhaustion, in other words, whether to admit the patent exhaustion principle on the parallel imported goods, and these opinions include; International Exhaustion Theory, National Exhaustion Theory and Regional Exhaustion Theory. This issue is one of the fierce controversies among the subjects that are being dealt with by the World Intellectual Property Organization(WIPO). Under such social background, I have introduced in this paper the government positions and court decisions of each country reviewed the basis for each viewpoint. In conclusion, I have presented an opinion that the International Exhaustion Theory should be accepted based on the reasons as below: First, it accords with the principle of patent laws by balancing the interest between patentee and user that it only admits one-time compensation to the patentee. This concept should also be applied to parallel imports. Second, International Exhaustion Theory is necessary in order to accomplish safety of trade and vitalization of free trade. Third, International Exhaustion Theory also corresponds to consumer welfare and economic fairness.