진보성 요건 판단을 위한 2차적 기준에 관한 연구
A Study on the Subtests of Inventive-step for Patentability
0
조회
0
다운로드
3
인용
0
참고문헌
키워드
초록
Abstract
This article focuses on the secondary considerations for inventive-step of patentability. The secondary considerations means objective evidences of inventive-step(or non- obviousness) such as commercial success, license, long-felt but unsolved need, failure of others, copying and unexpected results. The objective evidences must be considered before reaching a conclusion of inventive-step. Even a invention gets commercial success, it is hard to say that commercial success is caused by the invention. The advertisement or marketing may cause commercial success rather than that. Non-technical objective factors such as commercial success and license focus on the economic and motivational aspects of inventive-step. Rather the technical aspects such as long-felt but unsolved need, failure of others play a proper role in the inventive-step analysis. Courts must begin to consider the importance of evidence concerning the technical factors in determining patentability, particularly the inventor(or the patentee) presents evidence of commercial success. To emphasize for the inventive- step is based on the technology-sharing factors rather than non-technical. This article proceeds in four parts. Part Ⅰ gives background information on this article. Part Ⅱ outlines inventive-step standard and its objective evidences. Part Ⅲ sets forth objective evidences for determinating inventive-step with the theory and practice of USA Patent Law. Part Ⅳ presents some interpretations of these results in lights of both previous practice on inventive-step and new insights into the observations. Finally, this article concludes by proposing procedural and structural changes for inventive-step in patent prosecution and its litigation.
참고문헌 (20)
- "특허법 일부개정법률안 심사의견서" (2005)
- "지적소유권법 상" (2005), 육법사
- "산업재산권법원론" (2002), 법문사
- "특허심사 지침서" (2006), 특허청
- "Principles of Patent Law" (2001), Foundation Press
- "The Status of Obviousness and How to Assert It as a Defense", pp.76~625 (1994)
- "Nothing Seems Obvious to the Court of Appeals for the Federal Circuit Unchecked by the Supreme Court Transforms the Standard of Obviousness Under the Patent Law" (1993)
- "Prospects for Supreme Court Review of the Federal Circuit Standards for Obviousness of Inventions Combining Old Elements", 68, pp.66~ (1986)
- "Reforming Patent Validity Litigation: The Dubious Preponderance", 19, pp.923~ (2004)
- "New Standards for Patents" (1966)
- "E-Obviousness", 7, pp.363~ (2001)
- "Patent Law’s Nonobviousness Requirement: The Effect of Inconsistent Standards Regarding Commercial Success on the Individual Inventor", 19, pp.199~ (1990)
- "Economic Perspectives on Innovation" (1988)
- "An Introduction to Patent Law" (2003), Aspen Publishers
- "Patents for Beginners" (2004), NOLO
- "Laying the Ghost of the Invention Requirement", 14, pp.163~ (2004)
- "Subtests of Nonobviousness A Nontechnical Approach to Patent Validity" (1964)
- "Intellectual Property: The Law of Copyrights, Patents and Trademarks" (2003), Thomson[DOI]
- "Some Absurd Presumptions in Patent Cases", pp.10~ (1966)
- "A Critique of the Use of Secondary Considerations in Applying the Section 103 Nonobviousness Test for Patentability", pp.28~ (1987)