이용발명에 대한 통상실시권 허여의 요건에 대한 비판적 고찰

According to the patent law, only when the invention claimed in the second patent which cannot be exploited without infringing another patent (“the first patent”) involves an important technical advance of considerable economic significance in relation to the invention claimed in the first patent,non-exclusive use of the first patent can be allowed to the patentee of the second patent. On the other hand, patents are given to an invention when it is industrially applicable, new, and non-obvious, disclose the invention enough to be easily practiced by a person with the ordinary knowledge in the related technology, and write claims clearly and concisely fully supported by the specification. Therefore, even though an invention of using the first patent is qualified as being patented and is patented, if the second patent invention has not an important technical advance of considerable economic significance in relation to the invention claimed in the first patent, the patentee of the first patent cannot practice his invention as long as the first patent owner would not permit the second patent owner to use the first patent. This makes a patentee cannot practice his patented invention only because his invention has not 'an important technical advance of considerable economic significance.'This is absurd because even though the second patent owner has given the technical information of his invention to the public and received a patent, he cannot practice his invention and practically have not any chance to recoup his investment. To cure this absurdity, I propose that the clause of the patent law regarding the chance to non-exclusive use right should be eliminated.