The misuse case in the narrow sense is more likely to emerge in patent area than in copyright area. In fact, a recent case is easily found where a patent misuse activity got the penalty of Korean antitrust law even though such sanction was not related to Korean Civil Act. But almost all the civil cases since 2000Da69194 decision in Korean courts where patent misuse was recognized are no more than a blind following of the Japanese decision in the Kilby case. The recent Supreme Court Grand Bench Decision (2010Da95390) consolidated such a trend rather than redressed the problem.The misuse doctrine in this type of cases is just an artificial tool to block the enforcement of a registered patent which has inherently a ground for invalidation based on obviousness, without declaring the invalidity of the patent. However, this is hard to be treated as a true misuse of patent. In related practice, Korean courts have handled well so far the weakness of so-called two linear system dealing with patent dispute at least about novelty issue, without depending on the above artificial tool. In other words, with the help of plausible theories such as ‘exclusion of prior art’ principle, Korean courts have consistently denied validity of the related part in a registered patent even prior to declaratory judgment by Korea Intellectual Property Office. Therefore, it is possible for any Korean court to plainly recognize invalidity of a patent based on non-obviousness issue in a patent infringement litigation, by adopting the same approach. This approach is more appropriate than the other ambiguous compromise using the misuse doctrine just as a artificial tool. In addition, there should be harmonization of contradiction between 2010Da95390 decision and the other precedents adopting ‘exclusion of prior art’principle especially about which legal effect should follow such judgment.

Ⅰ. 서론
Ⅱ. 무효선언에 갈음한 권리남용론 등장배경
Ⅲ. 무효선언에 갈음한 권리남용론의 등장
Ⅳ. 무효선언에 갈음한 권리남용론의 분석
Ⅴ. 판례가 취한 권리남용론의 문제점 비판
VI. 결론

• 박준석(서울대학교 법과대학/법학대학원 부교수) | Park, Jung-seok