나노기술특허보호의 진보성요건에 관한 연구

The prosecution of nanotechnology-related patent claims is sure to raise unique problems. As technology continues to become increasingly more complex, we need to reexamine the rationale behind prior developed legal doctrine as applied to today's technology. One of most important problems is whether the miniaturization of known existing patented products to the nano-scale, standing alone, would satisfy the nonobvious patentability requirement. Substantial and fundamental differences exist between the world of nanotechnology and the traditional macro-technology world. Matter behaves uniquely when reduced to the nano-level. Furthermore, nano-scale interactions become dominated by quantum mechanical effects that are too weak to notice on the prior art at the macro-level. Based on the striking physical transformation that occurs when a prior art crosses from the macro-scale to the nano-scale, “the nano-scale is not just another step toward miniaturization, but a qualitatively new scale.” If the combined scope and content of all the available prior art does not enable a PHOSITA to produce the nano-scaled version of an existing device, it may not be legally concluded that the nano-scaled claimed invention is obvious, even if there is no difference other than size. Therefore, the miniaturization of existing, macro-scale, patented products to the nano-scale, standing alone, will satisfy the non- obviousness patentability requirement when the prior art references fail to provide an enabling method that puts the public in possession of the nano-scaled version.