우리나라 실용신안제도의 실효성에 관한 재검토 - 특허와 비교하여 -

Abstract

Originally the Utility Model System was introduced as part of the supplement the patent system and its purpose was to protect and promote the small inventions by individual inventors or medium and small-sized enterprises. The “Invention” which is the subject of Patent, and it’s define on the Patent is “the valuable as the creation of technical ideas by laws of nature”. And the “Invented” is the subject of a utility model registration. And it defined as “the creation of technical ideas by laws of nature”. Thus, the difference between a patent and a utility model is up to the “Valuableness”. On the other hand, the invention which is protected by patent can be divided as the invention about ‘Stuff’ and ‘Method’. Also, the ‘Stuff’ can be divided as the ‘goods’ which has the some form and ‘material’ which do not has the some form. In particular, the Utility Model Act regulating as the subject of protection only the invented about ‘goods’ which has the some form. Thus, the main contents of Utility Model Act has the same with Patent Act or it follows same way the regulation of Patent Act, and in that the protect the creation of technical ideas, its legislative intent can be seen similarly. So, the core of the patent and the utility model system has the same problem that cannot regulate the criterion about inventive step. Also, regarding the criteria to distinguish between utility model and patents about the judgment of inventive step, the opinion of the Supreme Court of Korea does not present the criterion which can be applied to in practice except the difference in words. Meanwhile, the Utility Model System has contributed to the industrial development of the country. But on the other hand, cause of this regulation, it would give the disadvantage to someone who try to make a special creation. So, in this situation, it makes doubt that the mix using of Utility Model System and the Patent System are need, and if the Utility Model System has abolished, the problem will not occur. Thus, regarding the abolition of a Utility Model System and against this problem, solve by modifying the Patent Law seems more effective way, and in the future, it is expected that the more in-depth research will be studied.