특허법 제127조의 해석 기준에 관한 연구

In some foreign countries, a theory of indirect infringement has developed. The behavior, which is not direct infringement, can be infringement and what which behaviors are defined as infringement depends on the country’s regulation polices related to indirect infringement. Especially, when indirect infringement was first codified in Japanese patent law in 1959, Japan has legislated the unique policy and it affected the article 127 of Korean patent law. Taking such prosperities of indirect infringement and our unique doctrinal features, article 127 is difficult to deal much the same way as foreign countries’ indirect infringement. However, the present theory of interpretation and the judicial precedents have so far applied article 127 in the way of indirect infringement theory, and in the recent case of the export of half-finished goods, the Korean Supreme Court denied applying article 127 due to such elements, which are irrelevant to the article 127 as occurrence of direct infringement and territorial principle. The Supreme Court should have applied the standard in which some components of article 127 may not apply to the recent case. Therefore, it is necessary to not apply indirect infringement of a foreign country but to use interpretive criteria faithfully to our legislation.