용도가 약리기전으로 기재된 의약용도발명의 청구범위 명확성과 신규성 판단

Abstract

If the use of a medicinal invention is described as a pharmacological mechanism, the claims are narrowly interpreted as the use for treating specific diseases, etc. described in the specification, whereas if it is described as a medicinal effect, the claims are interpreted as the use as written in the claims. In this respect, the distinction can be said to be a very important issue in determining patentability, but there were practical difficulties due to the unclear distinction criteria between the two. Therefore, there is a need to establish a method of interpreting claims in the case of medicinal inventions where the use is described as medicinal efficacy or pharmacological mechanism. In this paper, in light of the difficulty in conceptually distinguishing between pharmacological mechanism and medicinal effect, the need for patent protection for the discovery of pharmacological mechanism, the need for inventor protection, and the practice of major foreign countries, at the stage of determining the clarity of the claims, the use described in the claim is limited to the pharmacological mechanism. We proposed a new judgment method that broadly recognizes medicinal use without questioning whether it is cognitive or medicinal, but applies the doctrine of inherency at the novelty judgment stage. In applying the doctrine of inherency, it will be necessary to consider whether the effect of the invention is based on the same attribute, whether the main patient group to be treated is similar, and whether it will be recognized as a different drug if commercialized, based on the nature of the drug's use lies in the method invention.