특허권 직접침해 법리의 개선방안

A Proposal to Amend the Patent Right Direct Infringement Jurisprudence in the Republic of Korea

Current direct infringement jurisprudence in patent law of the Republic of Korea has the following problems: (1) there exists no provision which defines direct infringement; (2) the majority opinion demands “as business” requirement; and (3) with regard to relationship with indirect infringement, dependent theory, independent theory, etc. co-exist. To solve such problems, this paper has examined direct infringement jurisprudences of the U.S.A., Germany, England, China, Taiwan and Japan. The comparative examination has revealed that majority countries (1) have provisions, which define direct infringement, (2) do not demand “as business” requirement and (3) have taken dependent theory. Under such comparative examination, this paper proclaims that (1) a provision which prescribes direct infringement shall be newly inserted in section 127(1) and (2) the provision must not demand “as business” requirement. Furthermore, section 127(2) must clarify that for indirect infringement to be established there exist direct infringement first. The specific provision, section 127(1) could be as the following: “A person who exploits a patented invention, during patent term, within the Republic of Korea, without authority, is liable for direct infringement of a patent right or exclusive licensee right. To exempt a private and non-commercial activity from infringement, Section 96(1) could be amended to newly insert a provision which exempt such an activity from effect of a patent right. Further study on indirect infringement of a patent right should be followed to make a perfect infringement jurisprudence as a whole.