균등침해 요건 중 ‘과제해결원리의 동일성’ 요건에 대한 고찰 -일본의 ‘비본질적 부분’ 요건과의 대비를 중심으로-

The first requirement of the Doctrine of Equivalents(hereinafter DOE ) in Korea is substantially same with the first requirement of the DOE in Japan. According to the jurisdiction of the Supreme Court in Korea, the first requirement of the DOE, the identity of the principle underlying the solution to the problem should be determined by whether the accused product includes the characteristic element of the claimed invention. In Japan, the first requirement is defined that the different part between the claimed invention and the accused product should not be essential. So, the first requirement could be determined whether the accused product includes the characteristic element or the essential part of the claimed invention in Korea as well as in Japan. However, there are two fundamental approaches to determining the characteristic element or the essential part of the claimed invention. The one is to determine by considering the specific element related to the effects of the claimed invention. The other is to determine by considering the technical idea related to the principle underlying the solution to the problem. It seems to be necessary to unifying the approaches because the conclusion could vary depending on the approaches. In Japan, the jurisdictions seemed to be divided until the Intellectual Property High Court(IPHC) judged a case on the head of the golf club which was applied the approach of considering the technical idea. Since the jurisdiction on the case of the head of the golf club , the courts in Japan are likely to unify to the approach of considering the technical idea. It seems to be desirable that the courts in Korea also should determine by considering the technical idea rather than the specific element like IPHC in Japan. This is, I think, the way to realize the original purpose of the DOE.