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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Issue Date
서울대학교 법학연구소
법학, Vol.45 No.3, pp. 66-93
특허발명의 구성요소요소 생략생략발명의 해당요건특허제도는 독점적 권리
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


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


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...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 45, Number 1/4 (2004)
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