무효사유가 존재하는 특허권의 행사와 권리남용의 항변

Abstract

If the grounds for invalidation exist in the patent right, it is desirable to restrict exercising patent right. The method to apply defense of abuse of right to civil law is conceivable to restrict exercising patent right. However, in exercising patent right for which grounds for invalidation exist, applying defense of abuse of right to civil law is problematic in theoretic consistency. The method of recognizing defense of invalidity of patent is also conceivable. However, defense of invalidity of patent is also unacceptable in the present institution where trial for invalidation exists, because it is very likely that the issue of inconsistent judgment arises in infringement lawsuit and trial for invalidation. After all, the most feasible method is to recognize the defense of restricting exercise of right. This is a defense that can eliminate demerit of defense of invalidity of patent and highlight merit. In this case, two requirements are necessary to recognize the defense of restricting exercise of right. So-called requirement of obviousness, one means recognition that patent could be invalidated in the procedure of invalid judgment. The other, called requirement of non-existence of specific situation, means that there is no possibility of eliminating the grounds for invalidation of the patent.