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불완전이용발명의 이용관계 성립 여부에 관한 고찰 : Does a Patented Invention Omitted Any of the Elements of the Prior Patent Constitute Infringement?
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- Authors
- Issue Date
- 2004
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.45 No.3, pp. 66-93
- Keywords
- 특허발명의 구성요소 ; 요소 생략 ; 생략발명의 해당요건 ; 특허제도는 독점적 권리
- Abstract
- Where working a patented invention would infringe another person's patented
invention under an application filed before the filing date of the patent
application, the patentee may not work the patented invention commercially
without a license from the owner of the earlier patent. If the other party refuses
permission without justifiable reasons or permission is impossible to obtain, the
patentee may request a trial for the grant of a non exclusive license with the
scope necessary to work the patented invention. Thus, the patentee can work his
patented invention and the owner of the earlier patent can reap royalty from the
patentee.
However, it is questionable whether working a patented invention having not
all of the elements of the earlier patent could infringe the earlier one. Basically
infringement happens when a patented invention having all of the elements (or
equivalents) of the earlier patent works. Proponents argue that because omitting
unimportant elements is easy to a person in the field and it is impossible to
write patent claims anticipating all occasions, infringement should be
acknowledged.
Opponents assist that because the scope of right of a patented invention is
determined by its claims and every element of a claim is essential to the
invention, working a patented invention omitted any of the elements in a claim
of the prior patent does not constitute infringement. They criticize proponents in...
- ISSN
- 1598-222X
- Language
- Korean
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