자유실시디자인과의 관계에 따른 디자인의 신규성 상실의 예외에 관한 개정 규정 관련 입법론의 비판적 검토 - 대법원 2023. 2. 23. 선고 2021후10473 판결 및 2022후10012 판결의 분석을 중심으로 -

Abstract

A common issue of Supreme Court decision 2021Hu10473 and 2022Hu10012 on February 23, 2023(hereinaft er referred t o as t he “t he subject decisions”) is whet her a t hird party’s defense of a freely practiced design based on a publicly known design can be allowed for t he protection of a t hird part y in a t rial t o confirm scope of a design right if an exception to lack of novelty is recognized for the publicly known design. Article 36 (2) 4 of the former Design Protection Act, a common issue provision of the subject decisions, was applicable to the subject decisions, but the current Design Protection Act deleted the provision related to the issue and needed to review some grounds of the decision about the issue. Therefore, it is necessary to fundamentally review the relationship between the recognition of an exception to lack of novelty and a freely practiced design under the current Design Protection Act system rather than dealing only with the consequential validity of the subject decisions under the former Design Protection Act. Now, i t i s necessary t o make a cent ral examinat ion on what t hese i ssues can mean in t he subject decisions even under the current Design Protection Act, where the provision of an exception to lack of novelty is revised. This p aper c rit ically examines t he pat ent court ’s decisions b ased on t he l egal b asis for the issue of the subject decisions, and then make a central examination on the legislative significance of the deletion of Article 36 (2) of the Design Protection Act, which has been recently revised and entered into force, and what this issue in the subject decisions can continue to mean according to the revised provision under the current Design Protection Act. In addition, it examines how such legislative theory under the Design Protection Act should be interpreted and organized to be desirable in relation to ‘inventions not deemed to be publicly known’ in Article 30 of the Patent Act.