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Falsely Obtaining a Patent and its Legality with Emphasis on the Duty of Disclosing Information in the Prosecution of Patents and the Enablement Requirement
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특허권의 기망적 취득과 그 특허권의 효력 - 정보공개의 원칙과 실시가능기재요건을 중심으로 -

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Type
Academic journal
Author
Jongkhab Na (연세대학교)
Journal
Korea Intellectual Property Society ; KIPS 산업재산권 산업재산권 제69호 KCI Accredited Journals
Published
2021.10
Pages
1 - 41 (41page)
DOI
https://doi.org/10.36669/ip.2021.69.1

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Falsely Obtaining a Patent and its Legality with Emphasis on the Duty of Disclosing Information in the Prosecution of Patents and the Enablement Requirement
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Recently, the Korea Fair Trade Commission decided that the Daewoong Pharm. Co., Ltd. falsely obtained a patent and misused it to prevent competitors from selling generic drugs. Under the patent system based upon a contract between the patentee and the public, the enablement requirement, the duty of disclosure requiring the patentee to disclosure the information of invent, and the doctrine of good faith are developed. In the course of the application and prosecution of invents to the Patent Office, non disclosing the material information or false information on the patentabiliy of invents shall be an inequitable conduct. As to the inequitable conduct during the prosecution of patent application and the enforcing the right of patent, the law of patent and the law of unfair trade have developed laws responding to the inequitable conduct. The law or the court declares the patent invalid in the want of enablement requirement. In a case of the falsely obtaining patents, the court development a equitable principle denying the enforcement of patent. In addition, the exercising the patent falsely obtained would trigger a punitive damages under the doctrine of patent misuse. However, Korea Patent Act Section 43 (3) does not clearly stipulate the enablement requirement and then can not bring a patent lacking the meet of the enablement requirement to the invalidation trial of patents because the clause, Section 133 (1) of the Korea Patent Act providing lists of bringing the causes to the the invalidation trial of patents does not include the lack of the enablement requirement and Section 43 (3). It is imperative that Korea Patent Act shall explicitly provide the enablement requirement and the lack of the enablement requirement as the cause of bringing to the the invalidation trial of patents.
#특허권의 남용 #실시가능기재요건 #불공정한 행위 #개시의무 #신의성실의 원칙 #특허무효심판 #Patent Misuse #Enablement Requirement #Iinequitable Conduct #Good Faith #The Invalidation Trial of Patent

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