특허법상 선사용권(先使用權) 제도의 운용에 대한 검토

This article looks into the realities of Prior User Right and proposes the desirable direction to move to. Prior User right is some exceptional rule under patent regime that encourages the disclosure of art to public. Meanwhile, it plays role for enterprise to be able to keep and exploit the valuable invention as business secret. Recently, the significance of the keeping invention as secret grows and its strategic importance is being redeemed seriously. Moreover, it is being revealed through law-economic analysis and empirical research that engaging the priority of independent invention against patent monopoly is beneficial for social welfare. In comparative law’s aspect, the reformed Patent Act of the U.S.(2011) enclose all inventions as the subject matter of Prior User Right. Some European countries as France, Belgium render Prior User Right to the prior inventor. Japan, one of the most outstanding patron of the Prior User Right system has long history, accumulation of practice experience and relevant case laws. On the other hand, the utilization of Prior User Right in Korea has been very meager and it needs to be improved sooner or later. Due to the internationality and territorialism of patent law, the conservative attitude toward Prior User Right may result to undermine the substantial power of domestic enterprises’patents. For improvement, it is needed to interpret the criteria of Art. 103 for Prior User Right more flexibly. While deciding the scope of patented claim or the nonobviousness of the patent,courts can reflect the existence of certain prior art on filing date in regard to the PHOSITA level. In the long run, the amendment of Art. 103 can be considered to encompass the compulsory license upon Prior User Right to be paid and the condition of “preparation of the business” to be deleted. Through it courts can obtain the policy leverage in deciding the Prior User Right for the preferable resolution.