특허를 받을 수 있는 권리의 거래 안전에 대한 이해 ―특허법 제38조를 중심으로―

A patentable right is granted to an inventor from the point an invention is completed until a patent right is registered. Personal property can be transferred both in patent right and patentable right. A patent right is disclosed publicaly for trade safety, but the patentable right cannot be disclosed for a specific period by the patent law. Although they are not disclosed, there still must be a legal mechanism that can ensure trade safety. Article 38(1) states that a transferee of a patentable right should submit a patent application to claim his own patentable right against the third party. Article 38(4) states that once a patent application is made, patentable right is transferred effectively to a transferee only if a transferee submitted a report of an owner change to the national patent office. In the recent case of the Supreme Court, it was held that the transfer of a patentable right is accepted even in the absence of an owner change report through the exception of Article 55. This might cause Article 38(4) to lose the function of trade safety. This paper asserts that there shoud be no exception to Article 38(4) to transfer the patentable right safely.