신규성 상실의 예외 규정의 적용범위 - 헌법재판소 2023. 7. 20. 선고 2020헌바497 결정 및 ‘관련판결’에 대하여 -

Abstract

The Design Protection Act(hereinafter referred to as ‘Act’) is the industrial policy law that promotes industrial development and protects only designs with novelty, but recently, rulings and amendments related to novelty have been actively made. In particular, if the principle of loss of novelty is strictly adhered to in Act, there may be c ases w here t he p urpose o f the system is inconsistent, such a s harsh cases in w hich design rights are not received by the design applicant disclosed. The revision of related regulations of the Act is different from the Patent Act, which has a system with the same purpose. In this regard, the target decision was the first constitutional judgment by the Constitutional Court on the exception clause for the loss of novelty, but due to the limitations of the case itself, the part where unconstitutionality should be discussed in depth was excluded from the subject of judgment. Therefore, it is necessary to comprehensively examine the issues of the subject decision and the related judgment to discuss the constitutionality of the provisions of the ‘clue of this case’. Accordingly, as a result of reviewing the criteria for judging unconstitutionality in infringement of property rights, the clues in this case can be seen to be beyond the limits of legislative formation due to the high possibility of infringement of property rights despite extensive legislative discretion. To resolve the unconstitutionality, first, it is possible to delete the clues in this case altogether, and second, at least to amend the clues to this case so that they do not apply to ‘public notice against intention’ among the clues in this case, and to delete the ‘foreign’ part. Considering the recent emergence of many judgments on constitutional issues of intellectual property rights, it is expected to revitalize the establishment theory, such as the current constitutional examination criteria, where changes in intellectual property rights are expected, such as the rapid development of Artificial Intelligence (AI).