특허성 관련 특허법 제29조 본문, 제1항 및 제2항 개정방안

Suggestions for the Modifications of Patentability-related Art. 29 of the Patent Act

This paper suggests modifications on the Art. 29 of the Korean Patent Act, which prescribes major patentability requirements, such as inventiveness, novelty, prior art, inventive step, industrial applicability. Through the modifications, hopefully will be achieved are: ① harmonization of Korean patent jurisprudence with international treaties and those of other major countries, ② streamlining of Korean patent system for the benefit of users, and ③ elimination of some ambiguous aspects of the article. After comparatively studying corresponding provisions of the U.S.A., Japan, China, Europe, PCT and draft of SPLT, this paper suggests as follows: 1. Prior art will be “any information in the world available to the public before the priority date”; 2. Priority date will be “the actual filing date, or, if any effective priority claim, the earliest filing date of earlier applications”; 3. PHOSITA will mean “a person having ordinary skill at the time of the priority date in the relevant technology field”; 4. Art. 29 will be divided into four subprovisions, each of which will prescribes inventiveness, industrial applicability, novelty and inventive step, respectively; 5. Inventive step (following the provision of draft SPLT) will be acknowledged if the invention cannot be easily substituted, combined or modified from the prior art; and 6. In accordance with above-mentioned suggestions, a few other provisions, such as Arts. 30 and 32, will be correspondingly amended. Art. 29 of the Korean Patent Act is the utmost important provision from the practical viewpoint. Notwithstanding, there has been need for substantive and procedural improvements. If the article is amended as suggested above, clarification, harmonization and streamlining will be the expected benefits.