미국 특허법상 선행기술로서 판매된 발명 법리(On-Sale Bar)와미국 연방대법원 Helsinn 판결

In U.S. patent law, On-Sale Bar means that a patent is not granted to an inventor if the inventor has engaged in the sale of the patent invention by obtaining a license contract for the use of the patent invention with a third party more than a year before the date of application for the invention. The U.S. Supreme Court explicitly has adopted the legal principle that the act of entering into a license agreement by an inventor is an invention sold as a prior art under the U.S. patent law, even if the inventor has imposed a confidentiality obligation by entering into a license agreement with a third party through the Helsinn decision. The decision has clarified the scope of On-Sale Bar by determining that On-Sale Bar are applicable to the sale of the inventor's patent invention, even if the contents of the patent invention is not known to the public or if it is not available to the public. In this respect, Helsinn decision means a ruling in favor of a defendant who has been sued for patent infringement by patentees. After all, the decision is opening an era of balanced patent protection in U.S. along with several Supreme Court decisions since the 2000s. The South Korea's Supreme Court judges that prior arts is known arts to the public. Therefore, a person who wishes to register a patent in U.S. should bear in mind that he or she cannot obtain a patent right just by entering into a license contract for his patent invention more than a year before the date of application for the invention. It is desirable for a person seeking a patent in U.S. to apply for his patent invention early and enter into a licensing agreement later.