특허법상 속지주의: 대법원 2025다202970 판결 및 제127조의 검토를 중심으로

According to the Supreme Court precedents, direct infringement of a patent right is established if an act performed within the jurisdiction can be evaluated as an "exploitation" of the patented invention (the so-called “Suture Legal Doctrine”). However, if there is no act in Korea that can be evaluated as an exploitation of the patented invention beyond the preparatory stages, neither direct nor indirect infringement is established (the so-called “Nokia Legal Doctrine”). Supreme Court Decision 2025Da202970 emphasized that the Suture Legal Doctrine must be strictly interpreted. Consequently, it remains a challenge to regulate the export of unfinished products where there is a clear intent to evade patent infringement. Meanwhile, the addition of "export" to Article 127 of the Patent Act appears to have legislatively superseded the Nokia Legal Doctrine, specifically the requirement of "double territoriality." However, the amended Article 127 faces issues of being both overly broad and excessively narrow in its scope of application. Therefore, to address the issues in Article 127 and the challenges presented by Supreme Court Decision 2025Da202970, Article 127 needs to be amended as follows: First, regarding product inventions, in addition to deleting "export" from Subparagraph 1 of Article 127, it is necessary to establish a new provision that deems the act of exporting unfinished products—which are in close proximity to the patented product—as an infringement, provided such act is performed with the intent to have the patented product produced abroad. However, it is appropriate to apply this provision only in cases where it is obvious for a person skilled in the art to produce the patented product using the supplied unfinished products. This proposed amendment would more effectively regulate the export of unfinished products with a clear intent to evade infringement and resolve the issues inherent in Article 127. Second, regarding method inventions, in addition to deleting "export" from Subparagraph 2 of Article 127, a new provision should be introduced to deem the act of exporting "products that substantially embody the patented method" as an infringement, when performed with the intent to have the patented method practiced abroad. This is because producing such products domestically is practically equivalent to utilizing the technical ideas of the patented method within the jurisdiction.