특허권 취득 후 특허발명의 불실시에 관한 주요국의 특허법상 규정과 취급에 관한 소고

초록

The patent system motivates the inventor to make new inventions by providing exclusive rights to the patented invention, aims to develop technology by inducing public to create new invention using the patented invention which is disclosed to the public, and thereby ultimately promotes the public interest of industrial development. Under these patent law, the "use of invention" has two meanings, "disclosure of invention" and "execution of invention." As a result of the "use of inventions," patented inventions will be disclosed to the public, thereby avoiding the same invention, as well as improving and advancing inventions based on the disclosed patented inventions. On the other hand, the execution of invention" is divided into the direct execution of the patentee and the execution of the third party. As the invention is actively execution, the inventors gain profits, and the technological development related to the patented invention. The development of technology under the Patent Act is accomplished through the execution of the patented invention. Some countries have purpose provisions in patent law, while others do not. The purpose of this paper is to confirm and compare whether "purpose" provision is established in each country's patent law. Each country's patent law provides for the cancellation or enforcement of patent right in cases where patented has not been exectued. Under the patent law in Korea, if a patentee does not or insufficiently execute a patented invention without justifiable reasons, the patent could be revoked or a compulsory license could be granted (Patent Act Article 107 (1)). Such provisions of patent law are similar in large frameworks due to the influence of the Paris Treaty or the WTO/TRIPs Agreement, but differ from country to country in details. This paper examined the differences among the provisions of the international treaty where patented inventions are not executed, the definition of the execution, obligations to execute patented invention, and measures against non-execution in major countries, In addition, this study, drew implications that could be reflected in the Korea patent law and sought alternatives.

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