硏究⋅試驗을 위한 特許發明의 實施와 特許權의 效力

This article deals with the experimental use of patented invention and the limitations of right. The first to be considered is whether the experimental use of patented drug before the expiration date may fall within the scope of patent limitation. The conventional analysis and major opinion of Korea and Japan on this issue give neither reasonable nor practical answer for the question. Moreover, once the “Patent-Approval connection regime” is adopted in near future as the implement of the KOR-US FTA, new paradigm of analysis needs to be offered. This article tries to answer these questions and needs. The second issue related to experimental use of patented invention is “Research Tools”, which has the nature of antinomy. Sustaining the patent right strictly for the major up-stream technologies may frustrate many down-stream inventions and deteriorate technological development. On the other hand, if the experimental use exemption is widely applied to the up-stream inventions, the society will suffer the disincentive of many fundamental technologies, which will also cause social harm. This article surveys the global developments of theories and legislations about experimental use of patent in comparative law's aspect and compulsory license for Research Tool patents. Accordingly, this article demonstrates that applying Art. 138 of Korean Patent Act can be a reasonable substitution of compulsory license resolution for Research Tool patent.