특허권 공동침해에 관한 연구 = Study on Joint Infringement of Patent

다국어 초록 (Multilingual Abstract)

Recently due to development of computer and IT technology, it has been made possible for a patent of invention to be worked not just by a single person but by several people jointly.
The number of invention which is composed of multiple elements using server and terminal is increasing in the area of invention base on network. Also in case of process patent, especially Business Model patent, the claim itself is often based on the premise that it is worked by several people.
When a patent of invention has multiple elements and several people jointly work it, no single person may be considered to work all the element of the patent. In that case liability for infringement of patent can be avoided easily by the conventional patent infringement theory which considers such infringement is constituted, not like tort, only when a single person work the whole elements of patent.
The judgement of patent infringement is decided by the various rules, for example, direct infringement, indirect infringement, or incomplete infringement, on the ground of All Element Rule. By contrast, where the patented invention is “performed” by multiple entities, there is a lack of statutory basis allowing for finding a joint infringement, and under the well-established doctrine requiring performance of all steps of a method patent to be attributable to a single party, the patent invention is deemed as not exploited by anyone. As such, when a process or method invention is exploited by multiple entities, it should be deemed that a joint, direct infringement cannot be found to be attributable to those multiple entities.
As to an indirect infringement attributable to multiple entities, it would be difficult to fulfill the so called “only-” and “use-” conditions as required under the Korean Patent Act to find an indirect infringement. As such, it is not possible to find an indirect infringement attributable to each individual entities.
Alternatively, tort liability under the Civil Act leaves room for finding a joint tort liability against multiple entities under the Civil Act in certain cases. Under the Civil Act, even when a specific right is not considered to have been infringed upon, tort liability may be found so long as there is an infringement upon an interest deserving of legal protection. As the Korean precedent does not require subjective common intent for joint tort liability, the joint performance of a patented invention by itself may lead to finding an objective common intent. Still, each of the entities’ actions would have to constitute a tort. Depending on the precedential attitude, if each of the entities’ actions are strictly required to constitute a tort, then it would be difficult to view each entity’s action by itself as a tort when patented invention is performed by multiple entities. Thus, it is anticipated that recognizing joint tort liability against multiple entities would not be easy. One way to find illegality of the overall performance of a patented invention by multiple entities would be to consider that the performance of a patent by multiple entities would eventually lead to the exploitation of a patent that could have been an exclusive right of the patentee. Namely, the exploitation would inevitably lead to an infringement upon an interest to which the patentee is entitled. If the standard of joint tort liability is the unity of imputability, it would be easier to find liability when there is subjective common intent among multiple entities, and hence, lead to the finding of a joint tort liability against multiple entities.
Further, one entity among multiple entities which exploits only non essential elements would not be patent infringer, but the other entity which exploits essential elements could be incomplete infringer. In the case that one entity induces the other entity (contractor) to exploit one or some elements of patent claim, it is desirable that just one entity one or some elements or patent claim, it is desirable that just one entity will be liable for patent infringement in view of the exploitation of one entity as an inducer or supervisor.
Therefore, it is recommended that judgement of patent infringement is preferentially decided by the prior rule as much as possible, with exceptional cases that superior one entity inducing the other entity to exploit some or all elements of patent claim would be liable for patent infringe or joint tort.


Key words : All Element Rule, Indirect Infringement, multiple entities, joint direct infringement, joint tort liability, claim

목차 (Table of Contents)

• 제1장 서론 1
• 제2장 특허침해에 관한 일반론 3
• 제1절 서설 3
• 1. 구성요소 완비의 원칙 3
• 2. 판례 6
• 3. 외국의 경우 6
• 제2절 특허침해의 유형 8
• 1. 직접침해 8
• 2. 간접침해 14
• 제3장 특허권 공동침해론 18
• 제1절 미국의 공동침해론과 판례 18
• 1. 에이전시(Agency)이론 18
• 2. 일정한 연관성(Some Connection)이론 22
• 3. 공동침해 인정범위의 확대와 제한론 26
• 제2절 일본의 공동침해론과 판례 39
• 1. 공동직접침해이론 39
• 2. 도구이론 41
• 제3절 우리나라의 공동침해론과 판례 42
• 1. 공동침해를 긍정하는 견해 42
• 2. 공동침해를 부정하는 견해 46
• 3. 우리나라의 관련 판례 51
• 4. 소결 56
• 제4장 복수의 특허실시에 있어서의 대안 58
• 제1절 청구항 작성 관련 58
• 제2절 민법상 공동불법행위 60
• 1. 독립불법행위의 구성 60
• 2. 귀책에서의 일체성 62
• 제3절 저작권법상 간접침해규정의 유추적용 63
• 제5장 결 론 67
• 참고문헌 69
• ABSTRACT 72