특허소송에서 출원경과금반언의 적용범위

• 영문명: The Applicable Scope of the Prosecution History Estoppel in a Patent Case
• 발행기관: 세창출판사
• 저자명: 권태복(Tae-Bok Kwon)
• 간행물 정보: 『창작과 권리』2008년 가을호 (제52호), 2~41쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.09.01

영문 초록

As to a determination of patent infringement, the prosecution history estoppel is to determine infringement on a patented invention in consideration of documents which an applicant or a patentee submits, and the opinions of the patent office or the courts through the entire process from a patent application to an extermination of patent right. In other words, the prosecution history estoppel is the principle that the Doctrine of Equivalents is inapplicable to elements consciously excluded from the invention by an applicant to be patented in an examination step even though the elements are the equivalents of the invention. In the latest decision of the Supreme Court, when an applicant amended claims by narrowing claims of the original application to avoid the reason for refusal on the ground of the description deficiency and the lack of the inventive step and filed a divisional application by dividing a part ofthe inventions from the original application, the Supreme Court did not admit the infringement by ruling that the divided inventions are deemed consciously excluded from the scope of the amended invention. As shown in the above precedent, the applicant or patentee can carry out various behaviors such as amendments, division of the application and modification of the application in the period from the patent application to the extermination of the patent. Also, the behaviors should be included in the legal purpose and scope prescribed in the law. However, the prosecution history estoppel is not applicable to all of the behaviors though the behaviors of the applicant or patentee are legal. If the amendment of the applicant or patentee corresponds to an amendment narrowing claims, the prosecution history estoppel is applicable to the amendment regardless of whether the amendment is to avoid precedent technologies or to solve the description deficiency.

목차

Ⅰ. 서언

Ⅱ. 출원경과금반언의 원칙과 출원인의 행위

Ⅲ. 출원경과금반언의 적용을 위한 행위의 목적

Ⅳ. 출원경과금반언의 적용을 위한 행위의 범위

Ⅴ. 결어

참고문헌

Abstract

키워드

균등론 출원경과금반언 상위개념 하위개념 정정 변경출원 분할출원 the Doctrine of Equivalents prosecution history estoppel upper concept lower concept correction divisional application