Earticle

초록

영어

In 2007, the U.S. Supreme Court stats that "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility" in KSR. The Court worried about the tragedy of anticommons, which makes unefficient use of resources due to too many exclusive rights, by the low level of barrier to patents under CAFC's TSM test which easily allows granting patents to inventors and easily recognizes patent infringement. The requirements for a patent are novelty, nonobviousness and utility in the U.S. The novelty requirement based on the natural rights perspective protects the public from allowing bad patents. The nonobviousness based on the Utilitarian perspective promotes the efficiency and welfare of the public. The U.S. court's view of novelty and nonobviousness deeply stems from the point mentioned above. Historically, the patent requirements evolved from the novelty to the nonobviousness. The case law shows this point:novelty, novelty plus, flash of genius, scrutinize-with-care (synergism), and nonobviousness. The low level of the requirements for patents of post Graham burdens the public under the pro-patent policy by the U.S.Government and the U.S. Courts then the KSR court comes back to the Graham. I argue that the U.S. courts use the nonobviousenss requirement to control the economic efficiency then, the KSR courts try to avoid the tragedy of anticommons by raising the level of obviousness. To do so, I analyze historical developments mentioned in several cases.

목차

Ⅰ. 서론
 Ⅱ. 진보성의 기준의 발전
  1. Novelty 기준
  2. Novelty Plus 기준
  3. Flash of Genius 기준
  4. Scrutinize-with-Care 기준
  5. Non-obviousness 기준
 Ⅲ. 진보성 기준의 확립: Graham사건부터 KSR사건까지
  1. 3중주: Graham, Calma 및 Adams
  2. KSR 사건
 Ⅳ. 결론
 참고문헌
 

키워드

신규성 진보성 반공유의 비극 나쁜 특허 좋은 특허 친특허정책 반특허정책 천재의 영감 상승효과 Novelty Non-obviousness Tragedy of Anticommons bad patent good patent KSR Graham Hotchkiss novelty plus Flash of Genius Scrutinize-with-Care synergism pro-patent anti-patent

저자

• 나종갑 [ Na, Jong-khab | 연세대학교 법학전문대학원, 법과대학 ]

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