특허법상 '용이한 발명'의 판단방법에 관한 연구

• 영문명: Determination for 'Easy Invention' on Patent Law
• 발행기관: 세창출판사
• 저자명: 민경만(Min, Kyung-man)
• 간행물 정보: 『창작과 권리』2010년 가을호 (제60호), 2~41쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.09.01

영문 초록

According to the Korean Patent Law, determination of the inventive step is performed by considering the problem to be solved by the invention, the configuration of the invention, and the effect of the invention with an emphasis on the difficulty of its configuration and the distinctiveness of its effect. However, in the determination of whether or not an invention could have been easily invented, it is difficult to perfectly determine the achievement of the invention by taking into consideration only the configuration and effect of the invention, and a theory regarding secondary considerations is emerging. Therefore, the purpose of this research is to study in depth the determination criteria associated with an "easy invention", which has been recognized as the most ambiguous part in the determination of the inventive step. The patent system exists to contribute to industrial development, and the invention, i.e., the target for the protection of a patent, refers to a highly advanced product of a technical idea. In this regard, when it is difficult in terms of the configuration and effect of the invention as based on the creative content of the technical idea disclosed in the specification thereof to determine whether or not an invention has an inventive step, the following cases should be considered as those having a high degree of creativity and thus not falling under the category of inventions which are easy to devise: - the case where the technological development of an invention does not cause any immediate distinctive effect to be exhibited, but it contributes in a superb manner to the industrial development in the concerned technical field, and - the case where an invention appears to have a simple technical configuration, but an outcome of the development thereof is accomplished because of an inspirational idea never thought of before. By doing so, any issues resulting from the application of the secondary considerations(non-predictivity of creation), such as considering the commercial success or the prohibition of hindsight, could be solved. Accordingly, as criteria used to make a determination concerning whether an invention could have been easily invented or not when determining the inventive step, we believe it to be necessary to consider the extent of contribution which was made to industrial development and the creativity thereof, such as the degree to which these overcome any technical prejudice, in addition to considering the object of the invention and advanced features of the configuration and effect based on the disclosure of the invention described in the specification. Therefore, the determination elements for easy invention of the inventive step is suggested as the following 4 items. 1) specialty of object 2) difficulty of configuration 3) distinctiveness of effect 4) non-predictivity of creation

목차

Ⅰ. 서론

Ⅱ. 진보성 판단에서의 용이한 발명의 판단

Ⅲ. 외국의 입법례와 심사기준

Ⅳ. 용이한 발명의 판단시 문제점

Ⅴ. 해결방안

Ⅵ. 결론

참고문헌

Abstract

키워드

특허 진보성 용이한 발명 이차적 고려사항 판단 patent inventive step easy invention secondary considerations determination