특허권을 소진시킬 수 있는 판매의 요건

Patent Exhaustion means that once a patentee sells a patented product, the patented product is no longer within the limits of the monopoly and no longer under the protection of the act. This doctrine requires the sale of the patented product. Issues related to the sale of patented products that can trigger patent exhaustion include whether a patent holder can avoid exhaustion through a license agreement instead of a sale, whether patent exhaustion can occur through online transmission rather than a typical sale of a patented product, and whether patent rights can be exhausted if the conditions imposed by the patent holder are violated. The first issue mainly arises in computer program inventions. Since the first issue has been discussed more extensively in copyright law, I reviewed exhaustion of digital content tin copyright. It was concluded that, unlike copyright exhaustion, where online transmission is not recognized as a sale, patent rights can be exhausted even through online transmission due to differences in the regulatory framework of patent law and copyright law. Furthermore, if a license agreement's substance can be regarded as a sale, patent rights also can be exhausted. Regarding conditional sales, I looked at the two positions that determine the exhaustion of patent rights, the exhaustion approach and the implied license approach and reviewed the recognition or rejection of conditional sales in major countries. In Korea, lower court rulings tend to affirm conditional sales based on implied license approach. However, considering that recent patented products include numerous patents, it is impractical for consumers to determine whether every patents in products have conditions. The fundamental purpose of the patent exhaustion doctrine is to promote patented products so it is deemed preferable not to recognize conditional sales under the exhaustion approach.