디자인보호법상 일부심사제도의 개선방향에 대한 고찰

Abstract

Under the Design Protection Act of Korea, a partially-examining system have a unique system that simultaneously operates applications for registration of partially-examined designs and applications for design registration. However, as it is organized into a unique system that is somewhat different from international legislation, there are many areas that lack legitimacy or are not clear in terms of the contents of the law or the operation of the system, so there are many things to improve about it. Therefore, this paper reviews the history of revision on a partially-examining system in detail, and then objectively evaluates the operation status of a partially-examining system so far based on statistical data from the Korean Intellectual Property Office as well as related references. In addition, we will review the legislative problems of the system and examine improvement directions of it in detail. In this paper, first of all, the overall review of a partially-examining system under the current Design Protection Act is conducted, and the significance and purpose of the system, the history of revision of the system, and their influence are reviewed. Next, after analyzing the specific operation status of a partially-examining system through statistical data from the Korean Intellectual Property Office, a comprehensive evaluation of these status is reviewed. In addition, legislative improvement directions are reviewed, and specific grounds are presented for clarifying the confusion of names and examination period, procedural overlap and complications on written oppositions, etc., the lack of grounds for selection of reasons for refusal, reorganization of procedural systems such as petitions for revoking patents, limitation of reasons for written oppositions, reorganization of some items subject to a partially-examining system, and processing of written oppositions by the Intellectual Property Trial and Appeal Board. In a comprehensive summary, as can be confirmed by the history of revision of a partially-examining system under the Design Protection Act, it is a reality that there is problems on uncertainty of the basis for the name or related regulations and the instability of the system with several revisions. In addition, as can be seen from the operation status, the number of applications can vary greatly depending on the revised situation, and various problems can arise due to overlapping or conflicting with other systems such as trials to invalidate design registration under the Design Protection Act. For clear and stable operation of a partially-examining system under the Design Protection Act, legislative reviews should be made synthetically in consideration of the history of revision and operation status of the system, as well as legislative purpose of the system and the relationship with industrial property right laws such as the Patent Act and the Trademark Act. In the end, in this paper, overall the problems mentioned above are pointed out and improvement directions of the system is reviewed.