허가 등에 따른 존속기간이 연장된 특허권의 효력범위

• 영문명: The effects of a patent, the term of which has been extended : focusing on the substantially same therapeutic effect and use
• 발행기관: 충북대학교 법학연구소
• 저자명: 신혜은(Shin, Hye Eun)
• 간행물 정보: 『과학기술과 법』제11권 제2호, 129~164쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.12.30

영문 초록

According to the Korean Patent Act Article 97, the scope of protection of a patented invention shall be determined by the descriptions of the claims. During the duration of the patent right, the patentee will enjoy the exclusive right over the entire scope of the claims. However, Article 95 of the Korean Patent Act states that the effects of a patent, the term of which has been extended under Article 90, that is an applications for Registration of Extended Patent Terms by Permission, shall extend only to practicing the patented invention on the things on which permission, etc. for registration of the extension is based (things used for specified purposes, if the purposes of such things are specified in the permission, etc.). Despite the fact that a considerable period of time has passed since the registration system for the extension of the duration of patent rights was introduced in Korea, it was unclear to what extent the scope of the extended patent rights could be recognized. However, in the first Supreme Court ruling on the scope of the validity of the patent right with an extended duration (Supreme Court Decree of Jan. 17, 2019, 2017Da245798; hereinafter referred to as Solifenacin ruling ), reasonable criterion was presented and it is expected that the confusion can be cleared up to some extent. In this paper, focusing on the criteria suggested by the Solifenacin ruling, I investigated in which direction it would be desirable to interpret the scope of validity of patent rights with extended duration. As a result, I came to the following conclusion. First, considering the purpose of the Pharmaceutical Affairs Law and the Patent Law, and the text of the relevant law, it is desirable to determine the effects of a patent, the term of which has been extended in accordance with the purpose of the patent law. Second, to determine the effects of a patent, the term of which has been extended, it is important to explore what the essence of the patented invention is. In conclusion, even if there is a difference in salt, etc., it should be regarded as belonging to the scope of validity of the extended patent right if it can be easily selected by a person with ordinary skill in the art. In addition, if the patentee who developed the new substance obtains the drug product license and then obtains the registration for an extension of the duration of the patent right based on this, the scope of the validity of the extended patent right will be extends to the range that can be regarded as substantially the same as the therapeutic effect of the diseases, for example, such as high blood pressure and diabetes, etc..

목차

Ⅰ. 들어가며

Ⅱ. 기존의 논의

Ⅲ. 솔리페나신 판결

Ⅳ. 우리나라 제약산업 현실에 맞으면서 국제적 정합성을 이루는 균형 잡힌 해석론

Ⅴ. 결론

키워드

존속기간 연장등록 특허권 효력범위 치료효과 용도 Patent term extension Patent right The scope of protection Therapeutic effect Use