특허권의 양도·전용실시권 설정 후 무효심판이 확정된 경우의 법률관계 - 특허법원 2023. 7. 20. 선고 2021나1398(본소), 2022나1227(반소) 판결 등을 단서로

Recently, courts serially judged that even if a patent is invalidated after the transfer, the transfer is still valid as every patent has potential possibility of invalidation and the risk of invalidation is shifted to transferee making the contract completely implemented with the assignment of title. This article points out the defects of this ruling. Firstly, it differentiates the nature between the transfer and the license of patent. Secondly, it introduces the legal practice of Germany, France, Japan, and Korea as to the cases where the patent is invalidated after its transfer. Further, it confirms that invalidation of patent after its transfer causes retroactive nullification of transfer contract and entails the mutual calculation between price of purchase and price of actual enjoyment of the patent. Furthermore, this article argues that the court overemphasized the nature of speculative contract of patent transfer and ruled the case in superficial and uniform manner; neglected the principles of interpretation of partie's intentions and the role of arbitrary provisions of civil law; overlooked the relation of the price and remaining terms of patent as well as the maldistribution of information to transferer and the possibility of his moral hazard. In conclusion, this article suggests the need for the Supreme Court to judge this issue straightforwardly in appropriate legal principles as mentioned above.