‘patent troll(소위“특허괴물”)’에 대한 법적 고찰*

Patent troll’s exercise of injunction through patent infringement litigation is to obtain maximum royalty and compensation for damage. Therefore such a patent troll’s deed is not to create but to disturb new invention. In order to control a patent troll s such a exercise of a right, as U.S patent act has the principles of equity according to §283, U.S the federal court held that the four traditional equitable factors; to meet the requirements for a permanent injunction, a plaintiff must show ⅰ)that it has suffered an irreparable injury ⅱ)that remedies available at law, such as monetary damages, are inadequate to compensate for that injury ⅲ)that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted ⅳ)that the public interest would not be disserved by a permanent injunction. However, since Korean Patent Act has the principles of equity in injunctions, article 2 of the Korean Civil Code cannot be applied in patent troll. Like reviewing cases of trademark misuse, the court of Korea and German applied the misuse doctrine of Civil law. This court considered subjective and objective requirements in judging trademark misuse. It is useful to consider subjective and objective requirements in judging patent misuse. On the other hand, in case that the exercising of injunction incurs a serious loss of economic value the principle of proportion can be applied. Considering that the purpose of patent law is the development of industry and economic effects, the principle of proportion may be applied in judging the patent misuse.