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This article discusses the Supreme Court’s 2011hu927 en banc decision rendered on January 22, 2015. This case provides clear guidelines as follows for the construction of Product-by-Process claims(hereinafter called ‘PbP claims’). “PbP claims should be construed as product invention because the subject of invention in PbP claims is not the process, but the end product itself obtained through the process. Therefore, even though PbP claims are limited by and defined by the process, determination of patentability is based on the product itself, not on its method of production. Only the structure or properties implied by the process steps should be considered when assessing the patentability of PbP claims over the prior art.” These rules should be applied equally when deciding the scope of a right about PbP claims in the infringement suit. The Supreme Court’s 2013hu1726 decision rendered on February 12, 2015 basically had the same view. In addition, according to this decision, in cases where clearly unreasonable circumstance is present, such as the scope of a right drawn from the construction applying aforementioned rules is unduly broad compared to the substance of invention understood from the entire specification, the scope of a right may be limited to the process itself written in the claim. The aforementioned decisions have significant meaning, since they established resonable guidelines for the PbP claims construction which is a highly controversial issue in the world, independently of other countries.

목차

I. 대상판결의 판시 내용
  1. 사안의 개요
  2. 판시 내용
 Ⅱ. PbP 청구항 일반론
  1. 의의
  2. 종류
  3. PbP 청구항 허용의 연혁 비교
  4. PbP 청구항의 해석론 일반
 Ⅲ. PbP 청구항에 대한 각국의 해석론
  1. 특허부여 단계에서의 해석론
  2. 특허침해 단계에서의 해석론
 Ⅳ. 대상판결 등의 검토
  1. 대상판결의 검토
  2. 특허침해 단계에 대한 대법원 2015. 2. 12. 선고 2013후1726 판결 검토
  3. 대상판결의 의의
 참고문헌
 

키워드

제조방법 물건발명 제법한정물건발명 특허청구범위 청구항 해석 PbP product-by-process process product invention PbP patent claim claim construction

저자

• 유영선 [ You, Young-Sun | 서울고등법원 고법판사 ]

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