특허발명의 강제실시
Compulsory Patent Licences

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서울대학교 법학연구소
법학, Vol.40 No1 pp.264-299
compulsory license배타적 권리비자발적 실시허락강제실시를 엄격히 제한
With a view to promoting the development of technology and industry, Patents Act grants patentees an exclusive right to exploit the patented invention. For the purpose of the same goal, on the other hand, Patents Act imposes a few limits upon the exclusive right of patentees: duration of the right, exception for experiments, and compulsory licences. Article 107 of Patents Act provides that, where a patented invention has not been worked in Korea consecutively for three years or more without any natural or terrestrial disaster, force majeure or any other justifiable reason, a person who desires to work the patented invention may request the patentee or exclusive licensee of such invention a consultation for the consent of a non-exclusive license. Compulsory licences are also available under Article 107 where the patented invention has not been exploited on a considerable commercial scale or has not satisfied the domestic demand on adequate degree and conditions in Korea consecutively for three or more years without any justifiable reason; where the non-commercial exploitation of the patented invention is indispensable for the public interest; and where failure to exploit the patented invention is found by an administrative entity or judiciary as constituting anti-competitive practices. In addition to compulsory licences under Article 107, Patents Act provides for compulsory licences under Article 138: the patentee, exclusive or non-exclusive licensee of a junior invention may apply for an adjudication on the grant of a non-exclusive license of the senior patent to the extent necessary for exploiting his junior invention. Comparative analysis of compulsory licences under the Patents Act of Korea with those under Western jurisdiction has demonstrated that there are several uncertainties and problems over the terms and conditions of compulsory licences in Korea. First of all, it is not clear whether compulsory licences are available under Article 107 in cases where a patentee imports his patented products and distribution into Korea and does not grant a third party any licence to exploit the patented invention. Majority of scholars in Korea regard importation without manufacturing patented invention in Korea as an abuse of patent right and accordingly interpret the Patents Act as allowing for compulsory licences in such cases. My personal view is, by contrast, that since the definition of exploitation under the Patents Act includes importation there appears to be no abuse by a patentee who simply imports his patented invention and, accordingly, no reason for granting a licence to a third party. Secondly, unlike compulsory licences under Article 138, those under Article 107 may be granted by the Comptroller General of the Industrial Property Office without any due process. While appeals against any adjudication under Article 138 may be brought to the Patent Court, those against the decision by the Comptroller General under Article 107 must go to the Court for Administrative Law. It is finally submitted in this essay that statutory provisions on compulsory licences are designed as an efficient means of promoting goals of the Patents Act and, also, that terms, conditions and procedures for compulsory licences will have to be amended to make a better balance between the interests of patentees and those of potential licensees.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 40, Number 1 (2000)
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