자기공지에 의한 공지 예외의 취지를 출원 후 보정할 수 있는지 여부 - 대법원 2011. 6. 9. 선고 2010후2353 판결을 중심으로 -

Article 30 (1) 1 of the Korean Patent Act provides that "when a person having the right to obtain a patent has caused his/her invention to fall under any subparagraph of Article 29 (1)," ("laid-open application") "if the patent application there-for is filed within six months from the applicable date, the patent shall not be deemed to fall under any subparagraph of Article 29 (1)."The preceding part of paragraph (2) of the same Article provides that "any person intending to have paragraph (1) 1 applied shall file a patent application in which the claim is stated to that effect." Recently, the Supreme Court of Korea, in case where the person succeeding to the right to receive the patent of the inventors who presented research papers about the research of the invention for a patent application, and filed the patent application in which the claim of "patent application as an exception to laid-open application" was not stated on June 21, 2006 and on the next day, i.e., June 22, 2006, again submitted to the KIPO the document titled as “submission of evidentiary documents proving the exception to laid-open application" with the contents that the invention for a patent application was laid open by publication on May 26, 2006 and "evidentiary documents are submitted in accordance with Article 30 (2) of the Patent Act," ruled that since the person filed the patent application without stating that the invention falls under the provision of an exception to laid-open application, and only at the later time, submitted the document with the claim that the patent application falls under the provision of an exception to laid-open application, Article 30 (1) 1 of the Patent Act can not be deemed as applicable to the invention for a patent application. Since the Supreme Court Decision is the first judgment on whether the application of the provision of exception to laid-open patent application in Article 30 (1) 1 of the Patent Act can be newly asserted as the amendment after the filing of the patent application, it is highly significant. I examined the validity of the Decision thoroughly from the viewpoint of comparative jurisprudence and the tenets of the law.