특허권 간접침해 성립의 직접침해의 전제 여부

Regarding the relationship between patent direct infringement and indirect infringement, the “dependence doctrine” demands pre-existence of direct infringement to find indirect infringement and the “independence doctrine” allows indirect infringement regardless of direct infringement. This paper proclaims the dependence doctrine as a proper one based on the following reasons: first, there are at least four situations where the independence doctrine is not proper; second, under the civil law and criminal law jurisprudence, an act to help a legal act must be considered legal and without a principal there could be no accessory; third, nowadays a few high-profile commentators claim the dependence doctrine. However, there is a situation where the independence doctrine is proper: an act which supplies relevant parts to a consumer who is non-commercially working the patented invention. It should be noted that, under current Korean law, a non-commercial working is not regarded as direct infringement. In that situation, to properly protect a patent right, the supplier’s commercial act must be interpreted as indirect infringement. To prevent such supplier from indirectly infringing a patent right and further to adopt dependence doctrine, this paper suggests to amend relevant provisions of the Patent Act as the followings. First, it is strongly recommended to add a new provision which may define direct infringement: an act working the patented invention during patent term in the territory of the Republic of Korea without authority. The definition does not include the limitation “as a business.” Therefore a non-commercial act may be treated as an infringement. Second, to prevent non-commercial private consumers from being sued by the patentee, a new provision may be added, which exempts such non-commercial acts from the effect of a patent right. Under the two new provisions, it would be possible to adopt the dependence doctrine as a basic principle on the relationship between direct and indirect infringements.