특허권 비실시자의 특허가 침해된 경우 구제 방법으로서 Liability Rule

The current patent law is based on Property Rule. But, as we can see in USA, such protection system has defects in protection of non-practicing patentee’s right. The main causes are high transaction costs, wealth effect, and strategic behavior. Therefore, under certain condition, Liability Rule should be applied. Considering non-practicing patentees includes not only patent trolls but also individual inventor․small-sized corporations, excessive application of Liability Rule may bring them improper handicap and compromise development of industry, which is purpose of the patent law. Liability Rules should be applied under following circumstances. First, in case non-practicing patentee behaved strategically for the purpose of getting leverage. But in real case, it would not be easy to determine what is strategic behavior and what is not. Second, in case infringers put much higher economic values than non-practicing patentee on patent itself. If Property Rule is applied in such circumstances, a patent fee will be wrongfully high because of wealth effect. To avoid evaluation error, value should be ‘much’ higher. If a patent fee of exclusive-license set properly, someone who have intention of practicing will be motivated to develop new patent, and avoid encroaching precedent patents by pre-searching. Definitely, those effects are important factor of development of industry.