Earticle

초록

영어

This article is related to the requirements of non-prejudicial disclosures as to invention disclosed several times before the filing of the patent application and relevancy of the disclosures. Patent is an award of opening new and useful technology to the public. Therefore, in principle, a publicly known invention prior to the filing of the patent application is not eligible to be patented. However, in order to encourage early publication of an invention and achieve the purpose of Patent Law more effectively, Korean Patent Law permits an exception under restricted conditions. According to the Article 30 of Patent Law, even if an invention is disclosed prior to the filing of the patent application, the invention is not considered to be publicly known when the required conditions set forth in the Article are met. There are two types of disclosures not be regarded as publicly opened. One is disclosure made by a person who has a right to obtain a patent. Another is made against the intention of a person with the right to obtain a patent. As to the latter, the exception is recognized with the requirements as follows. (i) A patent application shall be filed within six month from the date of disclosure, (ii) The purport of taking advantage of the provision of Article 30 shall be stated in the application; and (iii) Documents proving the relevant facts shall be submitted within thirty days from the filing date. In addition, if there are several disclosures before the filing of the patent application, the statement of the purport of taking advantage and the submission of the documents should be submitted as to every disclosure respectively. Under the Korean Patent Examination Guideline, only if the disclosure made after the first disclosure is the same with the first one in contents and closely related with the first one, the statement and the submission of the documents can be omitted. The meanwhile Courts and Intellectual Property Tribunal of Korea judged the relationship of the disclosures very restrictively and rarely admitted the omission of the statement and the submission of the documents. However, recently the Patent Court and Intellectual Property Tribunal of Korea changed their attitude and have been admitting the omission of the statement and the submission of the documents more broadly. Under these circumstances, this article reviewed the previous and recent cases related with Article 30 of Korean Patent Law and suggested desirable interpretation of that.

목차

I. 들어가며
 Ⅱ. 공지예외인정규정의 연혁
  1. 제정 특허법
  2. 주요 개정내용 및 법개정의 방향성
 Ⅲ. 복수 회 공지행위와 해당 공지행위의 밀접불가분성
  1. 원칙과 예외
  2. 밀접불가분성을 부정한 사례
  3. 밀접불가분성을 긍정한 사례
  4. 사례의 분석 및 검토
 Ⅳ. 현행제도의 문제점과 개선방안
  1. 문제제기
  2. 외국의 입법례
  3. 복수의 공지행위의 밀접불가분성
 Ⅴ. 결론
 참고문헌
 

키워드

저자

• 신혜은 [ Hye Eun Shin | 충북대학교 법학전문대학원 부교수. ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  산업재산권 [Journal of Industrial Property]

• 간기

  계간

• pISSN

  1598-6055

• eISSN

  2733-9483

• 수록기간

  1995~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 367 DDC 346