특허법상 미완성발명과 기재불비의 적용관계에 관한 검토

A Review on the Relation between Lack of Description and Incomplete Invention in Patent Act -Focusing on Patent Court Decision No.2010Heo3622; October 29. 2010)-

Article 29(Requirements for Patent Registration) in Patent Act states that inventions that have industrial applicability are patentable and Article 42(Patent Application) in Patent Act states that the patent application can't be registered unless the detailed description and claims of the invention describe the invention clearly and in detail as prescribed by Ordinance of the Ministry of Knowledge Economy so that a person with ordinary skill in the art to which the invention pertains may easily work the invention. Recently, Patent Court decided that a patent registration was invalid based on Lack of Description against Article 42, not on Incomplete Invention against Article 29(Patent Court Decision No.2010Heo3622; October 29. 2010). Substantially, there is no definite guideline that make a clear distinction between Lack of Description and Incomplete Invention and there is no definite standard that can explain which ground of both shall be applied in Korean patent examination guideline and court decision. In conclusion, it is necessary to set up a definite guideline on the Relation between Lack of Description and Incomplete Invention in Patent Act.