[특별기고] 대한민국 특허제도의 문제점 (Ⅲ)

• 영문명: A Review Regarding Problems on Korean Patent System(III) -In regard to First-to-file System under Korean Patent Law-
• 발행기관: 세창출판사
• 저자명: 최덕규(Choi Duk-kyu)
• 간행물 정보: 『창작과 권리』2011년 겨울호 (제65호), 189~206쪽, 전체 17쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.12.01

영문 초록

Article 36 Section 1 of Korean Patent Law provides the first-to-file system in which a first patent application may be granted as patent in case that there are more than one patent application in which the claimed inventions are identical. In other words, the latter patent application(s) except the first patent application shall not be granted as patent under Article 36 Section 1. The patent examiner may reject a patent application directly under the Article. However, the first-to-file provision is not a patentability such as novelty or non-obviousness but a procedural requirement for defining the scope of prior art for determining novelty. A patent application shall not be rejected directly under the first-to-file provision but may be rejected under the novelty provision over the prior art defined under the first-to-file system. One of important objects of the first-to-file system is to prevent double patenting. However, according to Article 29 Section 3 of Korean Patent Law, double patenting may be allowed to the same applicant. In order to deficiency of Article 29 Section 3, a request for terminal disclaimer shall preferably be studied to adopt. A junior patent application which is filed within the grace period of 6 months from the date of disclosure shall have priority for granted as patent over a senior patent application filed after the date of disclosure and before the filing date of the junior patent application. According to Article 36, for patent applications filed at the same day, only one patent application may be granted as patent through negotiation by the applicants when the claimed inventions are identical. The patent applications filed at the same day shall be consistently treated under the first-to-file.

목차

Ⅰ. 머리말

Ⅱ. 선원주의의 개요

Ⅲ. 우리나라 선원주의의 문제점

Ⅳ. 선원주의의 개선방안

Ⅴ. 결어

참고문헌

Abstract

키워드

선원주의 확대된 선원주의 중복특허 특허요건 신규성 동일성 선행기술 잔여기간 권리불요구제도 신규성 의제 first-to-file extended first-to-file double patenting patentability novelty identity prior art terminal disclaimer grace period for novelty