발명의 요지인정과 보호범위확정을 위한 청구범위해석론

Abstract

The gist of invention should be recognized and the protectionscope of patent invention should be decided through interpreting claimsin the Infringement Court where determines a validity and aninfringement of patent simultaneously. There is an interpretationcriterion in Monism which decides both in an identical aspect and aninterpretation criterion in Dualism which decides both in a differentaspect from each other in interpretation criterion of claims. In infringement suits, it is a general principle of law that the gistof invention is recognized through interpreting claims with respect to aninvalidation assertion of the defendant, the validity is decided incomparison with the prior art suggested by the defendant andsimultaneously the protection scope decision of patent invention is donethrough interpreting claims, and whether or not there is an infringementis decided by comparing the protection scope with the subject infringedproduct, In precedent of Supreme Court, the gist recognition ofinvention and the protection scope of invention are not clearly dividedbut may to be interpreted to the same concept by using an identical termcalled the claim interpretation. It is important whether to equate the interpretation criterion ofclaims or to approach differently on the basis of the gist recognition of invention and the protection scope decision of patent invention. Accordingly the domestic precedent and theory on the interpretationcriterion when interpreting claims are analyzed in the present paper, andon the basis thereof, they are reviewed by comparing with the foreigninterpretation criterion, and the problems involved in an interpretationcriterion in Monism and an interpretation criterion in Dualism are bereviewed, and the plan which unifies the interpretation criterion isattempted to be suggested in the present paper.