특허법 제2조에서의 ‘청약(offer)’에 관한 해석

Following the TRIPS Agreement’s designation of “offer” as one mode of exploiting a patented invention, the Korea Patent Act adopted an expansive concept of “offer” that encompasses, inter alia, the “display for the purpose of assignment or lease.” However, there is persistent disagreement regarding the meaning of this “offer,” and Korean doctrine has not yet clearly distinguished it from the notion of “offer” under contract law. As a result, interpretive uncertainty continues as to whether pre-sale conduct—such as the presentation of technology, the indication of contractual terms, or the solicitation of transactions—falls within the scope of an “offer” for purposes of patent infringement. In particular, whereas the United States interprets the term “offer” in patent law as having the same meaning as “offer” undercontract law, the United Kingdom, Germany, Japan, and China treat “offer” in their patent statutes as a concept distinct from the contractual offer and construe it as having an autonomous legal meaning. Building on this comparative understanding, this article seeks to decouple the patent-law notion of “offer” from the doctrinal framework governing manifestations of intent in contract law, and to articulate a new interpretive standard grounded in the substantive function of the patent-infringement inquiry. More specifically, it derives criteria that are normatively appropriate for assessing infringement— such as the identification of the relevant technical features, the indication of transaction terms, and an objective likelihood that domestic transactions will be initiated—while at the same time preventing an overexpansion of the offer concept by expressly excluding non-transactional, promotional conduct, such as displays or disclosures of information that do not provide any pathway for a responsive transaction. In addition, by analyzing the legislative approaches of Japan and China, which have introduced autonomous statutory terminology in order to avoid conflict with the contract-law “offer,” this article proposes a legislative reform under which the Korea Patent Act would replace the term “cheongyak” (offer) with “jean” (proposal) as the normative term governing offers in the patent context.