자유실시기술의 법리와 판결의 문제점

With regard to the protest in relation to the free conducted technology, if the technology of the infringer is a technology that was notified before the application for the patent invention or something that can easily be invented from the notified technology, this technology then belongs to the so-called “sharing domain” (i.e. public domain). This is a protest matter permitted with regard to the aspect that everyone can freely use such a technology. With regard to the patent infringement litigation, among the methods of arguing that the invention subject to a confirmation that is carried out by the defendant does not belong to the scope of the right of the patent, the protest regarding the free conducted technology has been used as the most effective defense measure. In a court case, it is judged as to whether an invention subject to a confirmation pertains to the free conducted technology, by examining not only the novelty of the invention subject to the confirmation, but, also, the judgment on the inventive step. It is judged whether it belongs to the right scope of the patent invention. Regarding the protest in relation to the free conducted technology, Germany, Japan, China, and Korea have been recognizing it as an protest by the defendant. However, the United States has not been recognizing this. If an invention subject to a confirmation pertains to the free conducted technology, the court case regards that the invention subject to the confirmation does not belong to the right scope of the registration right without contrasting the invention subject to the confirmation with the registration right. Also, the judgment on whether this pertains to the free conducted technology has been made based not only on novelty, but, also, on inventive step. As a result, judging on the inventive step regarding the confirmation subject to a confirmation with regard to the protest in relation to the free conduced technology has the same effectiveness as judging, in a roundabout way, on the inventive step regarding the patented invention in an invalidation trial. In Germany, a person who has received the infringement argument can argue for the protest in relation to the free conducted technology on the grounds that the example of the execution carried out by him or her is a technology that has been spoken for itself by the conventional technology or from the conventional technology. In the case when the execution example carried out by the person who has received the infringement argument is the same as the patent invention, the protest in relation to the free conducted technology gets denied. Also, the protest of the free conducted technology is applied only with regard to the infringements by the equivalents and is not applied to literature infringements. However, it is the actual circumstance that the Korean court has been applying the protest in relation to the free conducted technology without any restriction. The application of the protest in relation to the free conducted technology without any restriction by the court is called “the sublation”. With regard to the patent infringement lawsuits, there is a need to examine the application of the protest in relation to the free conducted technology to the infringement by the equivalent. In addition to the above, I believe that, considering the difficulty of the inventive step judgments, it is desirable to limit the scope of the judgments on whether an invention subject to a confirmation pertains to the free conducted technology to only the novelty judgments.