특허법상 공지예외적용에 관한 연구

Abstract

In the original patent system, there is a first-to file rule and a first-to invent rule. Despite a first-to invent rule being the most ideal system, most countries are taking a first-to file rule because of the management or the dispute of the patent. And in order to protect those who disclosed the invention before the patent application, the Korean Patent Law has a Grace Period. In order to receive such Grace Period, the patent application must be filed within 12 months from the date that the invention was published and a patent applicant shall file a patent application to that effect and submit documents evidencing the relevant facts to the Commissioner of the Korean Intellectual Property Office within 30 days from the filing date of the patent application. In this case of a cane ice cream, a patentee having the patent right related to cane ice cream did not follow the related procedure at the time of filing a patent and at last the patent right was invalided. But this is against the intention of the patent system granting rights in exchange for disclosure. Therefore, in accordance with the view that such a system is insufficient for the protection of the inventor, the Korean Patent Law was revised so that if a patent applicant submit the effect and documents evidencing the relevant facts within (1) the period during which amendment is permitted or (2) a period of not more than three months from the date when the certified copy of a written decision to grant a patent or the certified copy of a written judgment to revoke the decision to reject a patent application is served, the patent application can be receive the Grace Period. However, this revised patent law does not really help patentees. This is because the inventors do not actually know the system and the revised patent law is ineffective. Therefore, this study suggests the system not to prescribe the time when the procedure should be followed like the United States or to follow the procedure at the time when the patentee submits a written reply to a petition for an administrative patent trial like the Design Protection Act. In addition, this study also aims to introduce the foreign system related to the Grace Period so that the inventors do not cause unjustifiable damage because they do not actually know the Grace Period system which differs from country to country.