특허법상 특허를 받을 수 있는 권리에 대한 의문점

Patent Entitlement is defined as a right under patent law granted to the inventor and his or her successors in interest. According to the majority view, this entitlement is a special right under patent law that is granted to the inventor and his or her successors in interest upon the completion of an invention, and is granted to the inventor and his or her successors in interest until a patent application is filed and a registration is made whether or not to grant the patent. The majority scholars explains that the entitlement to patent has the character of a property right as well as the character of a right to apply for a patent. However, legally it's not correct the entitlement to patent has a private property nature because patent entitlement is a specialized right under patent law, so patent law must be applied. However, it is doubtable whether patent law should apply even when an inventor does not want to apply for a patent and has practiced, licensed, or transferred his idea or know-how to others. I believe that the provisions of patent law relating to patent entitlement can be explained by excluding the private property nature of the patent entitlement. There are legal inconsistencies in patent law that do not fit into the general jurisprudence (civil or commercial legal theories). Although an inventor's idea or know-how may have character of property rights, it is only a property right recognized by the inventor, not a legally recognized property right. If an inventor enters into a license agreement or assignment agreement for an invention, only the parties to the agreement have recognized the invention as a property right. This is a contract relationship between the parties, not a legal relationship to which patent law applies. I think it is problematic that the patent law community tries to characterize patent entitlement as a patent legal relationship even though it is an area where the general principles of contracts law apply. The provisions under the Patent Act relating to the transfer of the patent entitlement or the effect of succession to the entitlement may be understood if the patent entittlement is understood as the right to apply for a patent, but if the entitlement is understood as a private right as a property right, there are legal problems in the interpretation of the provisions. Patent entitlement is the right to apply for a patent, which is the starting point to be protected. If patent entitlement is to include private property rights, it is necessary to define its concept. In addition, if patent entitlement is to include private property rights, the rules on the effect of transfer or succession of the right to patent entitlement should be revised accordingly.