신규성 의제에 관한 고찰

Grace Period in the Korean and International Patent Law

Whether a given invention fulfills the patentability criteria of novelty and inventive step(non-obviousness) depends on the prior art to be taken into account as yardstick when these patentability requirements are under examination. Despite the enormous progress in patent law harmonization, which culminated in 1994 in the adoption of the Agreement on Trade Related Aspects of Intellectual Property Rights, in which mandatory standards as regards the subject matter eligible for patent protections, as well as the contents and duration of the patent right have been established for all Members of the World Trade Organization, the definition of the notion of the relevant prior art remained at discretion of each Member. Whereas under the law of the United States of America, Republic of Korea disclosures of the inventor, which occurred within certain time limits, i.e. one year, or six months, respectively(the so-called grace period), prior to the filing of patent application do not affect the patentability of inventions for which patent protection is sought, they do so under the European Patent Law. The grace period rule for equity reasons is aimed at protecting the inventor against disadvantages which otherwise would result from an early disclosure of the invention. For equity reasons no difference may be made between disclosures of the inventor and disclosures of his invention by third parties against his will. The description or use at hand do not necessarily have to contain a complete disclosure of the invention, since the grace period do not establish a priority date but only resulted in an immunity of the inventor against his own prior disclosure as far as the relevant state of the art for his application is at hand.