특허침해소송에서의 부당제소 법리에 관한 연구

As a countermeasure against the filing of meritless lawsuits, the Supreme Court in Korea recognizes tort liability for damages based on torts under certain conditions. The principle of the wrongful action can be applied when a patent infringement lawsuit is filed. However, it is pointed out that it is difficult to hold that filing a patent infringement lawsuit brought to exercise the patent right granted by the patent office is unfair per se, and that it is difficult to concede tort liability in that determination of the validity of the patent right requires professional judgment. Aside from the abstract possibility of applying the principle of the wrongful action, it is necessary to establish the criteria for tort liability when a patent infringement lawsuit is filed. Considering the existing judicial precedents, if there is a reason for patent invalidation or non-infringement of patent right, there is a possibility that the filing of a patent infringement suit may satisfy the objective requirements of the wrongful action. Of course, due to the nature of patent rights and patent infringement litigation, the problem still remains that it is difficult to prove the subjective requirements of intention or negligence of the person claiming the wrongful action. Therefore, it is necessary to review a way to seek compensation for damages in violation of the Fair Trade Act from the perspective of whether it harms competition in the market by paying attention to the competition or trade relationship of the parties in the case where the patent infringement lawsuit is meritless. A recent decision of the Korea Fair Trade Commission held a series of acts of a defendant including filing a patent infringement lawsuit as violating the Fair Trade Act. The case suggests the possibility of seeking compensation for violations of the Fair Trade Act can replace or supplement the principle of wrongful action.