Earticle

초록

영어

Until the Korean Patent Act was amended in 1990, it had stipulated that any interested party could not file an invalidation trial after 5 years of the registration date. In the beginning, the Patent Act did not have any limitation in the subject-matter of the exclusion period, but it greatly narrowed the scope of the subject-matter and finally eliminated the exclusion period in the current Patent Act. Even though the Korea Patent Act of 1961 ~ 1986 stipulated the exclusion period, the Korean Supreme Court has not been coherent in adopting the exclusion period. However, the Korea Trademark Act has stipulated the exclusion period without great difference in the scope of the subject-matter. The Supreme Court also has strictly adopted the exclusion period to trademark cases. The exclusion period of the trademark law is needed to protect both the trust of the owner of a trademark and the consumer confidence of the product having the trademark, and preserve a sound trade order. The exclusion period of Korean Patent Act of 1960s was to foster and encourage investment considering the extremely bad industrial and economic circumstances. The exclusion period of the Korea Patent Act in 1980s restricted the subject-matter to an invention or a device published in foreign countries. Considering the purpose and revision history of the exclusion period in the Korea Patent Act, Supreme Court 63hu45 decided 22 October 1964 (a partly disclosed right) and Supreme Court 81hu56 decided 26 July 1983 (a whole disclosed right) made a mistake by neglecting the stipulation of exclusion period designated in the Patent Act of those days. These appear to be the result of the consideration of the industrial and economic circumstances. The two decisions, however, provided a rational standard for the confirmation of the scope of a patent including a prior art.

목차

I. 서론
 II. 제척기간에 대한 규정
  1. 특허법(실용신안법)의 제척기간 규정
  2. 상표법의 제척기간 규정
  3. 특허의 제척기간과 상표의 제척기간의 비교
 III. 제척기간에 관한 특허 및 실용신안 사건의 검토
  1. 대법원 전원합의체 63후45 판결
  2. 대법원 63후45 판결에 따른 판례
  3. 대법원 63후45 판결에 따르지 아니한 판례
  4. 대법원 전원합의체 81후56 판결
  5. 대법원 99후3047 판결
  6. 일부 공지에는 63후45 판결, 전부 공지에는 70후19 판결을 따를 때
  7. 결론
 IV. 제척기간에 관한 상표 사건
  1. 대법원 70후30 판결
  2. 대법원 74후71 판결
  3. 대법원 91후899 판결
  4. 대법원 2011후2275 판결
  5. 결론
 V. 결론
 참고문헌
 

키워드

제척기간 63후45 판결 81후56 판결 일부공지 전부공지 권리범위 권리범위확인심판 무효심판 신규성 진보성 Exclusion Period Supreme Court 63hu45 decided 22 October 1964 Supreme Court 81hu56 decided 26 July 1983 Scope of a Patent Trial to Confirm the Scope of a Patent Invalidation Trial Novelty Inventive Step

저자

• 구대환 [ Koo, Dae-hwan | 서울시립대학교 법학전문대학원 교수 ]

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