Earticle

초록

영어

The criteria for the identity of inventions are critical for the assessment of novelty, inventive step, and the priority of inventions. Identity of inventions is determined by comparing the restrictive elements of inventions at hand. No difference between the elements of the inventions is interpreted as the identity of the inventions. Where the difference is estimated to be non-substantial, however, two inventions can also be declared to be substantially identical. A species invention can also be identical to a genus invention, which results into a well-known maxim: a species anticipates a genus. This paper critically addresses the criteria for the identity of two inventions, with focus on the notion of substantial identity and identity between genus- and species-inventions. The maxim, “a species anticipates a genus”, seems to have been deduced from the well-known principle: “That which infringes, if later, would anticipate, if earlier.” The principle, however, was coined before the notion of inventive step was developed apart from novelty requirement. Now with the notion of inventive step, something infringes, if later, dose not always anticipate, if earlier. Furthermore, identity of inventions must be determined by the criterion whether the invention as an idea exists within the public domain. A species-invention itself does not always fully represent a genus-invention. Therefore the generally accepted notion of identity for the species- and genus-inventions does not seem to be plausible anymore. The notion of substantial identity for the assessment of novelty is not compatible with the notion of inventive step. It should be discarded and substituted by the notion of inventive step. Substantial identity for the assessment of priority of inventions should also be abandoned, for this does not have a firm legal basis. In the long term, however, test of inventive step is preferred during the assessment of priority of inventions, with accompanying amendment of the Patent Act.

목차

Ⅰ. 서론
 Ⅱ. 동일성의 개념
  1. 발명의 동일성
  2. 발명의 실질적 동일성
  3. 종ㆍ속관계 발명의 동일성
 Ⅲ. 동일성 판단의 기준
  1. 신규성 판단을 위한 동일성의 기준
  2. 선ㆍ후원 판단을 위한 동일성의 기준
 Ⅳ. 결론
 참고문헌
 Abstract

키워드

동일성 종ㆍ속 실질적 발명 신규성 우선권 identity genus species substantial invention novelty priority

저자

• 김관식 [ Kim, Kwan-Shik | 한남대학교 법과대학 교수 ]

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