신규성 의제에 대한 대법원의 태도에 대한 비판적 검토 -대법원 2011. 6. 9 선고 2010후2353판결-

Abstract

Korean Patent Act section 30 deals with grace period that disregards any publication prior to the prosecution of the Invention. Allowing 6 month period for the inventor after the time of publicize his invention by the way of articles or any other means specified in that section was the former act which was revised by 2011 revision for the implementation of the KorUS Free Trade Agreement in November 2nd 2011. After the revision of 2006, the events allowing for that 6 month grace period were to be added and now grace period was extended to one(1) year same as United States. In this case the patent agent was negligently omitted the submission of the document contemplating that he or she already publicized his or her invention by publishing a article within the grace period and the inventor wanted to rely upon the section 30(novelty presumption for the invention). Under that circumstances, whether the inventor could amend the fault of the patent agent by the submission of document with the same effect later on was the issue debated between KIPO and applicants. Korean Patent Court allowed that amendment only if that amendment is to be made within the grace period. However, Korean Supreme Court decided to the contrary. Korean Supreme Court kept an eye one the wordings of the Section 30, which says whoever want to utilize the novelty presumption paragraph 1 have to meet the procedural requirement in paragraph 2 which requires the inventor to submit the grace period motion to KIPO together with the patent prosecution documents. Korean Supreme Court came to a conclusion that any patent applicant who fails to submit the motion to allow the grace period right at the time when they prosecute their invention cannot enjoy the grace period. Under the current case law, all the applicants who want to enjoy the grace period have to submit the motion to allow grace period "simultaneously" when they apply the patent to KIPO.