특허침해로 인한 금지권의 상대화(相對化)에 대하여

This paper is a study on the “proportionality of injunction” for patent infringement and a proposal of its adoption through enactment. The injunction against patent infringement has been regarded as a homology with that of property ownership. However, it is to be noted that Patent Act has its original goal and the rule of remedy for patent infringement can be established upon its own statutory purpose. The conventional framework of remedy: straight choice of injunction between "allowance" or "denial" reveals limitation to handle the reality of various patent infringements in practice. The substantial cases to arouse this issue are, the injunction over whole article by a patent of small component(s); the injunction against the infringer of good faith with reasonable ground; the injunction by a patent whose validity is uncertain. As a plausible resolution, Art. 126 of Patent Act shall be amended allowing the judges legal discretion in ordering injunction. Namely, judges may consider equitable factors such as willfulness of infringer; balance of interest between parties; capability and amount of alternative monetary remedies, etc. This renovation takes the unstable application of 'Abuse of Right', which has been the basis of denial of injunction, into statutory framework, giving solid ground of jurisprudence. It also enables the judges to exercise flexible discretion balancing the interest among patent holders, the competitors and social policy. The proportionality in injunction is widely accepted in the U.S. practice for patent infringement since eBay case(2006). The relevant regulations of EU: The Directive On The Enforcement Of Intellectual Property Rights (2004), Agreement on a Unified Patent Court(2013) also reveal a trend moving toward proportionality in Europe.