소극적 권리범위확인심판에서 실시 ‘계획’ 또는 ‘예정’인 확인대상발명의 확인의 이익

Korea has had a unique system, called negative patent scope declaration trial, through which a requester may ask whether a proposed or planned act would be in the scope of the patent right. Like a normal declaration action before a court, interest of declaration shall be recognized in the trial as well. In that regard, there exist different opinions on the proper level of declaration interest. Based on the belief that the most important function of the negative patent scope declaration trial is to prevent future patent disputes, this author contends that declaration interest must be flexibly and widely recognized in the trial. Those who have different opinions apprehend that such flexible and wide recognition enables a requester to misuse the trial. In other words, a defendant of a patent infringement litigation may specify a declaration target invention differently from his actual products and getting a favorable decision from the trial and then by submitting the decision may try to deceive the civil court. Based on the following reasons, this paper proclaims that the apprehension on such misuse is much exaggerated. Firstly, current system which demands the requester clarify whether the declaration targer invention is being actually worked or is being planned to work makes such misuse difficult. Secondly, the patentee himself can prevent such misuse by admitting that he does not have any intent to raise a patent infringement litigation against the declaration target invention specified by the requester and by making the trial dismissed lack of declaration interest.