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초록

영어

It was judged in the Supreme Court that a novelty can be applied in a case where an invention described in claims is identical with a cited invention as well as a case where an invention described in claims is substantially identical with a cited invention, according thereto, in the examination criteria, it is regarded that there is no novelty in case where both have the substantial identity and a patent cannot be accepted. Although premising the case where the invention described in claims is substantially identical with the cited invention in the Supreme Court, it would have been to be the issue whether or not both have the substantial identity is realized by what criteria and determination. In order to determine the novelty, first, the determination criteria in that the gist of the invention can be accepted by referring to description of invention in case where the gist of the invention cannot be accepted only by the item described in claims was suggested. Next, after accepting the gist of the invention described in claims, it is determined whether or not the gist of the invention has the identity with the cited invention. Then, if it would be identical therewith, a patent cannot be obtained, however although it is the case where there is a difference, it cannot be accepted to be determined that all would have the novelty. Although the invention described in claims and the cited invention are not completely identical, it should be interpreted not to have the novelty if the difference (i) is merely a simple addition, change, cancellation, etc. of the well known, publicly used technology in the concrete means for solving a subject, (ⅱ) has no new effect obtained thereby, (ⅲ) is merely an extrinsic item which does not substantial influence on the technological concept of the invention.

목차

I. 서론
 II. 대법원 2014후1181 판결의 쟁점사항
  1. 판결의 개요
  2. 판결의 쟁점사항
 III. 신규성의 판단대상과 동일성
  1. 신규성의 판단대상
  2. 청구항에 기재된 발명의 요지인정
  3. 인용발명의 특정
 IV. 신규성의 실질적 동일성의 판단기준
  1. 신규성과 발명요지인정의 판단
  2. 청구항의 해석과 실질적 동일성의 판단
  3. 주지관용기술의 부가ㆍ삭제ㆍ변경의 판단
  4. 새로운 효과의 판단
  5. 비본질적 사항의 판단
 V. 결론
 참고문헌
 

키워드

신규성 청구항 동일성 발명의 요지인정 인용발명 주지관용기술 Novelty claims identity acceptance of invention gist well-known publicly-used technology

저자

• 권태복 [ Kwon, Tae-Bok | 광운대학교 법과대학 교수. ]

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