특허물품 병행수입에 있어서 내구재와 비내구재의 비교

Abstract

It is very important matter whether we should choose between the ‘National Exhaustion’ which prohibits the parallel importation of patented goods and the ‘International Exhaustion’ which permits the parallel importation. The author generally supports the ‘International Exhaustion’, because once the patent holder exercises his rights and receives the remuneration, then such rights should be exhausted irrespective of the location of the first exercise of such right. However, in order to cope with complicated phenomena of the international trade, proper mixture of ‘International Exhaustion’ and ‘National Exhaustion’ would be a better option in light of the each characteristics of the patented goods in question. In this respect, the comparison of the economic notion of ‘Durable Goods’ and ‘Non-Durable Goods’ seems to be meaningful in dealing with exhaustion of patented goods and parallel importation. Patent exhaustion should be applied to the durable goods, which may be expected to be traded in the second hand market afterwards. On the contrary, non-durable goods is expected to consumed by the purchasers themselves. If the patent exhaustion should be applied to non-durable goods in international context, then windfall may be granted to the commercial scale, opportunistic third party who seeks the arbitrage in the course of trade of such non-durable goods. Thus, national exhaustion might be applied to only non-durable goods. To institutionalize above idea, it is proposed to amend the relevant regulation of the Korea Customs Service to the effect to permit the parallel importation of patented durable goods.