특허소진의 지역적 범위와 병행수입의 허용 여부

• 영문명: The Geographic Scope of Patent Exhaustion and Whether to Admit the Parallel Imports
• 발행기관: 충북대학교 법학연구소
• 저자명: 임상민(Lim Sang min)
• 간행물 정보: 『과학기술과 법』제7권 제2호, 265~299쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2016.12.30

영문 초록

Once a patented good is put on sale for the first time by the patentee or with through a 3rd party under patentee s consent, the patent right in relation to such a good will no longer be in effect. This is called the Principle of Patent Exhaustion or the First Sale Doctrine. There is no dispute in recognizing the Principle of Patent Exhaustion with in a single nation. On the other hand, Parallel Imports refer to patented goods that are imported at other countries through a route that is different from the importation course designed by the patentee. There have been conflicting opinions over the issue of the geographic scope of patent exhaustion, in other words, whether to admit the patent exhaustion principle on the parallel imported goods, and these opinions include; International Exhaustion Theory, National Exhaustion Theory and Regional Exhaustion Theory. This issue is one of the fierce controversies among the subjects that are being dealt with by the World Intellectual Property Organization(WIPO). Under such social background, I have introduced in this paper the government positions and court decisions of each country reviewed the basis for each viewpoint. In conclusion, I have presented an opinion that the International Exhaustion Theory should be accepted based on the reasons as below: First, it accords with the principle of patent laws by balancing the interest between patentee and user that it only admits one-time compensation to the patentee. This concept should also be applied to parallel imports. Second, International Exhaustion Theory is necessary in order to accomplish safety of trade and vitalization of free trade. Third, International Exhaustion Theory also corresponds to consumer welfare and economic fairness.

목차

Ⅰ. 서설

Ⅱ. 특허소진원칙의 이론적 근거

Ⅲ. 특허소진의 지역적 범위에 대한 각국 정부의 입장

Ⅳ. 특허소진의 지역적 범위에 대한 각국 법원의 판결

Ⅴ. 특허소진의 지역적 범위에 대한 견해의 대립과 논거 검토

Ⅵ. 결론

참고문헌

Abstract

키워드

특허소진 병행수입 국제소진 국내소진 역내소진 보상설 거래보호설 묵시적 허락설 특허독립의 원칙 Patent Exhaustion Parallel Imports International Exhaustion Theory National Exhaustion Theory Regional Exhaustion Theory safety of trade consumer welfare economic fairness etc