[특별기고] 대한민국 특허제도의 문제점(II)

• 영문명: A Review Regarding Problems on Korean Patent System (I) -In regard to Appeal Procedure in Patent Appeal Board or Patent Court-
• 발행기관: 세창출판사
• 저자명: 최덕규(Dukkyu Choi)
• 간행물 정보: 『창작과 권리』2011년 가을호 (제64호), 227~245쪽, 전체 18쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.09.01

영문 초록

In the multiple claims system, the examiner may reject a patent application with various rejection reasons. For example, claim 1 may be rejected under novelty, claim 2 under non-obviousness, and claim 3 under description requirement. Claim groups A, B and C can be applied in the same manner. In the case with multiple rejection reasons, the multiple issues are usually raised in the appeal before the Patent Appeal Board or in the following appeal before the patent Court. In the example above, three issues will be presented to discuss in the appeal. It is our practice in the appeal that the appeal is dismissed if at least one of the issues is not justified, in other words, if at least one of the rejection reasons was correct, although the remaining issues are justified, in other words, although the remaining rejection reasons were not correct. In many appeals, all the issues brought by the applicant are not discussed if at least one of the issues is not justified. In such appeals, they reason that a patent application shall be finally rejected if it has a rejection reason on even one claim. Such appeal procedure in the patent Appeal Board or the Patent Court is seriously harmful to the patent system and cannot protect inventors appropriately. In order to implement the right appeal system, all the issues brought by the applicant should be discussed regardless of their justification. Further, the previous decision should be reversed if any one of the multiple issues is justified. Finally, the case shall be returned to the examiner so that she provides the applicant with an opportunity to amend the claims or to reply.

목차

Ⅰ. 머리말

Ⅱ. '한항거절 전부거절' 논리를 적용한 판례들

Ⅲ. '한항거절 전부거절' 논리의 역사 및 부당성

Ⅳ. '한항거절 전부거절' 논리의 진정한 의미 및 실무관행

Ⅴ. 결론 - 심판 및 소송에서의 올바른 절차를 위한 제언

Abstract

키워드

특허출원 청구항 거절이유 심판 기각 파기 분할출원 특허심판원 특허법원 patent application claims rejection reason appeal dismiss reverse divisional application Patent Appeal Board Patent Court