생산방법의 추정과 확인대상발명의 특정

Article 140(3) of Korean Patent Act states that when a trial is requested to confirm the scope of a patent right under Article 135(1), the explanation and the necessary drawing(s) that can be compared with the patented invention must be attached to the written request.Herein, the explanation and the necessary drawing(s) that can be compared with the patented invention are defined as a confirmation subject invention. A related article, Korean Patent Act article 129, states that when a product is identical to another product manufactured by a patented process, the former is presumed to have been manufactured by the patented process of the latter unless the former is publicly known before the filing of the patent application. That is, in this case, the former product is presumed to be under the scope of the patented process. The article is prepared since it is difficult to provide evidence proving the manufacturing process of other persons. When a patentee exercises the patent right, the patentee should provide evidence proving the infringement by an alleged infringer; however, in the case where the patented invention is a process, it is more difficult to provide evidence proving the infringement as compared with the case where the patented invention is a product. Therefore, the patentee may presume and specify the manufacturing process of the alleged infringer and assert the infringement by an alleged infringer; however, if the alleged infringer denies the infringement, the patentee should provide evidence. Therefore, to easily specify a product of an infringer for comparing the product of the infringer with a product manufactured by a patented process, it is necessary to revise Article 42(3) of Korean Patent Act so that Article 42(3) states that a definite description of a productmanufactured by a claimed process should be included in a patent specification. In addition, it is considered that the explanation and the drawing(s) of a confirmation subject invention are necessary to be prepared in the same formats as claim(s) and drawing(s) of a patent specification so as to prevent unnecessary arguments. Therefore, it is necessary to revise a related article so that requirements of a patent specification are applied mutatis mutandis to specification of a confirmation subject invention.