권리범위확인심판에서의 진보성결여에 근거한 특허무효 및 특허권남용 판단에 관한 비판적 고찰 - 특허법원 2009.2.18.선고 2008허3889판결의 분석을 중심으로 -

Recently, Patent Court judged that a patent right has not been effective on the other worked invention by accepting defense of invalidation of patent based on a Absence of Nonobviousness in a trial to confirm the scope of a patent(Patent Court Decision No.2008Heo3889; February 18. 2009). And this determination was also based on an abuse of patent right. In case Patent right has been granted against a requirement for patent, nonobviousness, this right must be only nullified by a trial to invalidate a patent. And Supreme Court has judged on whether a patent didn't have novelty but has not judged on whether a patent didn't have nonobviousness in a trial to confirm the scope of a patent. But in the above Patent Court's decision, it was determined that a patent didn't have nonobviousness and further exercising the patent right fell in an abuse of patent right in a trial to confirm the scope of a patent against the above Patent Law's principle and the former Supreme Court decision. I think that the determination of Patent Court like this is unreasonable. In a trial to confirm the scope of a patent, determination of invalidation of patent and an abuse of patent right based on an Absence of Nonobviousness shall not be accepted in accordance with Patent Law's principle in a trial to confirm the scope of a patent and for the significance of the existence of a trial to invalidate a patent. In conclusion, I think that it is necessary to set up definite guidelines on concrete determinations about a trial to confirm the scope of a patent in Patent Law and trial systems of Intellectual Property Tribunal.