제법한정물건 청구항(product-by-process claim)의 해석에 관한 새로운 제안
A New Suggestion on Interpretation of a Product-by-process claim
신혜은, 정차호
초록
This paper summarizes that, during prosecution, in researched four countries, the U.S.A., Japan, Europe and Korea, a product-by-process claim is being interpreted as the product itself without considering the relevant process. Furthermore, this paper summarizes that, after issuance, the interpretational methodology of a product-by-process claim has not been settled, being distant from being an indisputable law. We, authors, proclaim that (1) a claim must be interpreted based on what was invented, disclosed and claimed by the inventor (applicant), and therefore (2) a product-by-process claim whose essence is the process must be interpreted considering the claimed process and (3) a product-by-process claim whose essence is the product itself must be interpreted without considering the relevant process. This paper further proclaims that a product-by-process claim must be consistently interpreted regardless of its stage, before or after the issuance. To so proclaim, this paper has found that unrestricted application of the broadest reasonable interpretation rule to a product-by-process claim is not corresponding to what the applicant invented, disclosed and claimed.