특허권실시계약에서 실시권자의 부쟁(不爭)의무에 대한 법적 고찰

Abstract

This study examines the possibility of a licensee claiming invalidity of certain licensed patents in the Prinzip von Treu und Glauben (principle of trust and faith) and estoppel perspective, based on legal grounds of doctrines and judicial precedents. The results show that invalidation trials not only simply arbitrate private personss interests, but also function as a process to nullify the right to a monopoly of certain technology that should not have been given the right in the first place, the process thus fulfilling public interests. Therefore, considering that enlarging the appropriateness scope of applicants as large as possible suits the purpose, it would be reasonable to contradict the non-contestability duty in principle and recognize the non-contestability duty only in very exceptional situations. Such exceptional situations may include where a special relationship is recognized with interested parties concluding a licensing agreement through bilateral reconciliation and simultaneously agreeing to withdraw trial requests, and yet the case is subject to considerable violation of the principle of trust and faith. Next, since the legal validity of imposing the non-contestability duty on has been much discussed in many countries including the matter of violation of the Antimonopoly Act, legal force of the Antimonopoly Act regarding the non-contestability duty in the United States, Japan, Korea and Europe is surveyed. Also, the U.S. judicial precedents, which have greatly influenced revisions of Antimonopoly Acts in other countries, are examined. The results show that although non-contestability agreement is basically valid in the principle of private autonomy perspective, such validity of the agreement is denied accordingly when it violates good public order and customs or the Antimonopoly Act. That is, because there may be another interested party besides the licensee, the corresponding right may be attacked by a third party even if the licensees request for an invalidation trial is hindered. Thus, the non-contestability duty clause does not directly harm public interests. Also, the non-contestability duty clause may help amicably conclude a licensing agreement, thus facilitating use of rights. Therefore, the non-contestability duty should not necessarily be invalidated.