공지기술이 포함된 특허발명에 대한 권리범위의 확정

Many modern technologies develop in a 'sequential and cumulative' way making improvements on the top of the prior art. Most of patents are granted inventions that are combinations of known and new technologies or new combinations of known technologies. For these reasons, patent claims have usually involve prior arts. It is unclear whether prior arts involved in a patented claim should be included or excluded from the scope of a patent in trials to confirm the scope of patents, etc. Especially in decisions of 63Hoo45, 85Hoo50, 55, 90Hoo823, the Korean Supreme Court noted that even though a utility model involves prior arts, the scope of the utility model cannot be extended to the prior arts that are not organically connected to the remaining structure having novel technical effects because utility models are granted to novel devices. However, in 2000Hoo617 the Korean Supreme Court notified that known elements in a claim cannot be considered to be without having organic relationship with the remaining novel structure, and thus, such known elements must not be excluded from the scope of a patent right. The purpose of this article is to find out unclear cases in confirming the scope of a patent involving prior arts, highlight the problems resulting from misunderstanding of confirming the scope of a patent, and suggest an appropriate standard in confirming the scope of a patent. Important findings in confirming the scope of a patent with prior arts are the following:(1) It is needed to examine closely whether the prior arts are organically connected with the other novel parts. (2) If prior arts are considered to be organically connected with the other novel parts, the scope of the patent should be considered to comprise the prior arts. (3) If prior arts are not considered to be organically connected with the other novel parts, the scope of the patent should not be considered to comprise the prior arts, even though the patent should not have granted. In some cases (e.g. Supreme Court 82Do2834 decided 29 May 1984, Supreme Court 86Hoo99 decided 1987.9.8., Supreme Court 87Hoo68 decided 1988.1.19., Supreme Court 89Hoo2045 decided 1990.10.26., Supreme Court 90Hoo2409 decided 1991.9.24., Supreme Court 91Hoo1649 decided 1992.2.25., Supreme Court 96Hoo1989 decided 1997. 7. 22.) the Korean Supreme Court made a mistake by confusing the above principles (2) and (3) in confirming the scope of a right. therefore, in future, the Korean Supreme Court should correct the mistake to prevent the similar mistakes.