특허권 공동침해에 관한 연구

Abstract

Protection of patent would be a kind of balancing game between the incentive to patentees who invent useful invention and the protection of public domain knowledge which could be freely used by public. It means that the whole combination of all elements in a patent claim is the patented invention which is subject to patent protection and a person who implements the patented invention with missing any of elements in the patent claim is not liable for patent infringement. In other words, a patent holder would be able to accuse a person as patent infringer when the alleged person uses all elements of the patent claim as a single entity.

Under the traditional industry such as manufacturing industry, this kind of patent protection methodology has been working well. Under some of recently developed industry such as internet-based E-commerce industry, however, there would be some circumstances which the traditional methodology does not fit well. Although a single entity does not use all the elements of a patent claim and the plurality of entities are separately involved in using of all the elements, we definitely face some situations in which the patentee should be protected, especially in the field of business method patent. Under that situation, the theory of the joint infringement of patent could be considered to protect patentees.

This article will discuss and review the cases on patent joint infringement in United Sates, Korean, and Japan. Through the comparison among the theories on the joint infringement of patents by each country, this article tries to find the balancing point on what kind of situation we could adopt the joint infringement of patent to protect patentee from the patent infringement with the involvement of the plurality of entities.