특허침해소송 및 권리범위확인심판에서의 진보성 판단의 필요성에 대한 검토

In patent infringement proceedings the Korean Supreme Court recently has judged whether plaintiff's patent had novelty, but it has not examined whether the patent had inventive step. This trend appears to be originated from the following belief:(1) It is obvious to distinguish between judgement of novelty and that of inventive step. (2) Judgement of inventive step requires imagination of a person skilled in the art and his technological knowledge. However, judgement of novelty does not require both an imaginal person skilled in the art and his technological knowledge in the art. However, it is reasonable that (1) it is not obvious to distinguish between judgement of novelty and that of inventive step, (2) that judgement of novelty also requires both an imaginal person skilled in the art and his technological knowledge in the art, (3) judgement of novelty can be more difficult than that of inventive step because there is no limitation in cited technology, and (4) it is unfair to do judgement of other patentabilities except inventive step. The purpose of this article is to highlight the problems resulted from the (infringement lawsuit or trial to confirm the scope of patents) cases of the Korean Supreme Court, especially in which inventive step was not judged but novelty was judged. This is to emphasize the necessity to examine inventive step of the patent in an infringement lawsuit, and to provide the court with suggestions to enhance the court's accessibility to the technological knowledge and concentrate jurisdiction on patent infringement cases.