인도 특허법상 특허발명의 불실시에 관한 고찰(考察)

초록

If a patentee does not work the invention after a patent is granted, corresponding measures are taken in countries throughout the world on the grounds that it does not serve the purpose of the patent system. The patent law aims to grant an inventor an exclusive right while promoting industrial development through the use of technology. This is not only to revive the creative activities of invention, but also to enable all citizens to benefit from the convenience and prosperity of life through the use of the invention. The patent law is a system established to achieve this goal for the advancement of technology by utilizing inventions. Thus, if a patented invention is not worked after a patent has been granted, it will deviate from the purpose of the enactment of the patent law. As a result, each country's patent legislation includes a countermeasure for non-worked patents. If a patent is not worked, it will not serve the purpose for which it was enacted. Accordingly, each country, including Korea, is utilizing the patent system's purpose by inserting provisions in the Patent Act such as revocation of rights, grant of compulsory licenses, and a report on working of patent. However, the provisions on the non-working of patented inventions that seek to preserve the purpose of the patent system differ in each country in terms of legal requirements and nature. In particular, unlike the Korean Patent Act, the Indian Patent Act requires the working of a patented invention to be reported. In the event that this regulation is violated, criminal penalties will be imposed, and the Commissioner of the Korean Intellectual Property Office (KIPO) may grant a compulsory license to a third party based on whether the patented invention is worked. According to the Korean Patent Act, a patent can only be revoked by a trial decision if the applicant violates the registration requirements and prior application. In the case of patent revocation in India, the Indian Patent Office (CGPDTM) has the authority to revoke the relevant patent right ex officio if the public demand is not met even after two years have passed since the grant of the compulsory license. Furthermore, unlike Korea, India has penalty provisions for failing to submit a patent working report. It is specifically stated that a fine of up to 1 million rupees (approximately 20 million korean won) or, in the case of intentionally submitting false information, 6 months in prison or a fine, or both, can be imposed. This paper examines the measure for non-working patented inventions under Indian patent law, focusing on the obligation to report working of patent under the patent rules revised in 2020 and its implications for the Korean patent system.

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