이용발명에 있어서 이용관계의 조정

If a second patent is registered with a more considerable technical advance compared to the first one, it is necessary to guarantee the use of the second one even though the first patentee doesn’t permit it. Unless there is the permission of a compulsory license of a second patent, which contributes to our industrial development, the appearance of new improved inventions can’t be expected. The patent law requires ‘an important technical advance of considerable economic significance’ of the second one compared to the first one on condition of the compulsory license of the second one. However, we have to put more weight on ‘considerable economic significance’ rather than on ‘an important technical advance’. If the second one has already been registered in recognition of the advance, such an invention has to be allowed for use if possible. It is not realistic to even require ‘an important technical advance’. As whether there is ‘considerable economic significance’ or not can be often judged in process patents, this necessary condition is required to prevent the second one from being abused. Interests of the parties are finally mediated through the decision of the permitted limit of license and of the compensation. In deciding this, these things are to be considered – one is the profit that the second patentee makes by using the second patent, and the other is the damage that the first patentee suffers through the use of the compulsory license of the second patent.