선사용에 의한 통상실시권

다국어 초록 (Multilingual Abstract)

Section 103 of Patent Act provides the prior user right. This allows a person who has been utilizing a invention to its patenting to another person, to continue to use the invention under limited circumstances. It is explained as a defense to an action of infringement, but it can cause a contradiction with novelty. So it should be understood as a licence which is independent of patent right. Though the prior user right system is adopted generally, the prior user right system plays a important role in prior filed system. Traditionally the theories of The Prior User Right are divided that of preexisting invention protection, incitement, equity, economy and so on, but now the theory of equity and economy is a prevailing opinion. Purpose of the prior user right system is something preventing double patent and unnecessary application and balancing profit of occupants of invention. I wonder whether the explanation of theory limiting in giving a someone the prior use right is correct. And it is valuable that we consider that the prior use right occurs in putting it behind patent requested. The meaning of The Prior User Right System in prior filed Paten law system should be testified, and demanded that The Prior User Right System be harmonized with current Patent law system.

목차 (Table of Contents)

• I. 서
• II. 의의
• 1. 의의
• 2. 선사용권제도의 존재이유
• 3. 제외국에서의 입법례
• III. 선사용권의 법적 성질
• IV. 선사용권의 성립요건
• 1. 선사용권의 발생
• 2. 선사용권의 성립요건
• V. 선사용권의 효력
• 1. 선사용권의 범위
• 2. 선사용권의 효력
• 3. 선사용권의 이전 및 포기
• VI. 결어
• Abstract