특허침해소송에서의 무효의 항변 ―문제점과 해결방향을 중심으로―

In the customary way, the valid or invalid judgment of the patent was exclusively under the jurisdiction of the administrative agency, in particular patent office. That’s why the agency carried out the principle of allocation of authorities faithfully and there was the politic judgment that the specialized agency must be in charge of the technology decision. However if an invalid reason of the relevant patent is obvious in the infringement lawsuit, to judge it invalid in the court precisely without waiting for invalid judgement of the administrative agency, the court could reach a conclusion on whether is the valid or invalid judgment of the patent by reason that it has no occasion to continue the unnecessary dispute and reduce the lawsuit fee. Naturally this is limited to assert the invalid defense of the relevant patent by the defendant. Nevertheless according to acknowledge an invalid defense in the patent infringement lawsuit, there are several issues to realize the economy of lawsuit which had intended. On some circumstances, the lawsuit became complicated, prolonged the period and increased the costs. Therefore this paper investigates on the effect which the approval of the invalid defense in the patent infringement lawsuit has influence on both the party to a lawsuit and practical affairs of court and described to suggest the related issues and future directions in problem solving.