침해소송의 판결 후 특허의 정정․무효로 인한 법률문제-재심 허용에 대한 재검토를 중심으로-

When the patent claim mattered in infringement litigation is invalidated/re-issued after the closing argument in trial court, it is the judicial practice to admit the retrial of infringement litigation. This article reviews the legal problems that current practice may arouse and criticizes the rule of uniform retro action. In comparative law’s aspect, most countries that allow to contest the patent’s validity in the infringement suit prohibit the party’s retroactive contention based on the invalidation or re-issuance after the judgment. Regarding the reality that the defendant may argue the validity of plaintiff’s patent; the plaintiff may begin re-issuance process or submit the rebuttal of ‘prospective re-issuance’ in the infringement suit, the conventional practice aforementioned shall be reconsidered. The party which unduly failed to argue patent validity or to initiate re-issuance process during the suit shall be blocked from presenting said arguments after the judgment(doctrine of good-faith). This rule is important where the plaintiff who faced patent invalidity defense but refused to shrink its right throughout the suit tries to recapture the defendant with retarded re-issuance of the patented claim. It is right time to discuss the relativization of the retroactive effect regarding the party’s conduct in prior process of infringement suit.