대한민국 특허제도의 문제점 (Ⅲ) —잘못된 선원주의에 대하여—

Article 36 Section 1 of Korean Patent Law provides the first-to-file system in which a first patent application may be granted as patent in case that there are more than one patent application in which the claimed inventions are identical. In other words, the latter patent application(s) except the first patent application shall not be granted as patent under Article 36 Section 1. The patent examiner may reject a patent application directly under the Article. However, the first-to-file provision is not a patentability such as novelty or non-obviousness but a procedural requirement for defining the scope of prior art for determining novelty. A patent application shall not be rejected directly under the first-to-file provision but may be rejected under the novelty provision over the prior art defined under the first-to-file system. One of important objects of the first-to-file system is to prevent double patenting. However, according to Article 29 Section 3 of Korean Patent Law, double patenting may be allowed to the same applicant. In order to deficiency of Article 29 Section 3, a request for terminal disclaimer shall preferably be studied to adopt. A junior patent application which is filed within the grace period of 6 months from the date of disclosure shall have priority for granted as patent over a senior patent application filed after the date of disclosure and before the filing date of the junior patent application. According to Article 36, for patent applications filed at the same day, only one patent application may be granted as patent through negotiation by the applicants when the claimed inventions are identical. The patent applications filed at the same day shall be consistently treated under the first-to-file.