일회용 특허제품의 재활용에 따른 권리소진의 문제

It can be mattered whether or not the patent right may be exhausted when the used patented item such as a single use camera or an ink cartridge is resold after refurbishing or replacing its components(so-called recycling). In the recent cases regarding this issue, the Japanese and U.S. courts have come to different conclusions on the ground of respectively exhaustion approach and reconstruction approach. The exhaustion approach is one way to find the patent infringement if the patented items are considered recycled out of the range of a socially-accepted idea or if some components comprised of the essential parts of the patented invention are replaced. On the other hand, the reconstruction approach is the other way to find the patent infringement if the reuse or replacement act of the used patent item is considered a reconstruction. The fundamental reason why the case laws of the two countries came to the different conclusion looks based more on the legal policy or ideological problem rather than on legal principle. That the U.S. case law is based on the repair/reconstruction dichotomy is assumed because the idea of the patent protection is principally in harmony with the public interest Meanwhile, the Japanese case law attaches more importance to the protection of patent right owners on the basis of the exhaustion approach, which has its origin in the rights-centered civil law. The Korean patent policy may look to be the patent system for the protection of right owners in the same way as the Japanese policy. However, it is necessary to notice that the Article 1 of the Korean Patent Act pays much attention to the balance between the protection of right and the use. If it is not clearly constructed as the patent infringement, the reuse of single use patented products shall be decided on the consideration of the purpose or the basic idea of the patent law. Also, it is necessary to be considered how the said decision will affect the society.