자유기술의 항변에 대한 비교법적 고찰 - 독일, 일본, 중국의 판례를 중심으로 -

This article compares and analyzes Korean cases with those of Germany, Japan and China for protest for the free technology. As well, several issues involved with the protest for the free technology are examined inside the Korean business environment and improvements are suggested. In terms of patent infringement suits, protest for the free technology is thought to be the most effective defensive one among the methods that contend a defendant’s invention of confirmed object is not affiliated to an existing extent of a right. Protest for the free technology is a theory which is established based on each case; one cannot resort to Supreme Court precedents because it is prescribed that a court is not allowed to have a trial to nullify nor render a judgment to nullify if a specific patent is involved in an infringement suit. The Supreme Court precedents deem that the invention of confirmed object does not have the same scope of rights if it is affiliated with free technology. Furthermore, it judges novelty as well as the inventive step when determining whether it is free technology or not. Supreme Court 2012. 1. 19. Judgment 2010 da 95390. en banc. judged that the civil and criminal courts can render judgments on the inventive step of a patented invention. Protest for the free technology is considered as a transitional phenomenon, and hence, only the inventive step is able to be judged. If the scope of hearing for the invention of confirmed object is applied to the novelty judgment, it results in the allowance of a wider range of defendant’s objections which results in excessively lax patent protection. In addition, patent rights are an intangible property which are easily infringed, and judgments related thereto are very complicated. Moreover, evaluating the inventive step judgment can easily become subjective. Thus, it should forbid an easy citation of protest for the free technology in the courts and should be limitedly applied to the novelty judgment. International patent disputes are increasing especially rapidly in the IT industry. Therefore, practical issues should be considered and existing problems should be improved in order to enhance protection of the patentee, because currently even the novelty judgment is used.