특허청구범위의 ‘실질적 변경’ 관련 해석론 및 입법론

As analytic theories regarding substantive change of a patent claim, this paper explains: (1) an object of comparison whether there is substantive change is only claims and other parts of specification is only referred, (2) not only the claim with the same number but also other claims shall be compared, (3) the issue whether new matter has been added shall be separately decided from the substantive change issue, (4) a selection invention which is a type of inward limitations may cause substantive change, (5) an inward limitation and an outward addition shall not be differently treated but be decided under the same criteria, which is new objective and effect, and (6) the methodology for substantive change decision and that for inventive step decision are very similar to each other. As legislative proposals regarding substantive change of a patent claim, this paper proclaims the substantive change requirement had better be deleted during a correction procedure under following reasons: (1) a decision on substantive change is such difficult to induce continuous debates and disbelief and appeals against a trial decision, (2) the argument that the substantive change requirement is necessary to protect the third party is baseless and deletion of the requirement does not cause any harm to the third party, and (3) the substantive change requirement is not applied by other countries except only Japan and the requirement had better be deleted for harmonization of international patent system