발명의 공지예외를 인정받기 위한 요건과 공개행위의 밀접불가분성

This article is related to the requirements of non-prejudicial disclosures as to invention disclosed several times before the filing of the patent application and relevancy of the disclosures. Patent is an award of opening new and useful technology to the public. Therefore, in principle, a publicly known invention prior to the filing of the patent application is not eligible to be patented. However, in order to encourage early publication of an invention and achieve the purpose of Patent Law more effectively, Korean Patent Law permits an exception under restricted conditions. According to the Article 30 of Patent Law, even if an invention is disclosed prior to the filing of the patent application, the invention is not considered to be publicly known when the required conditions set forth in the Article are met. There are two types of disclosures not be regarded as publicly opened. One is disclosure made by a person who has a right to obtain a patent. Another is made against the intention of a person with the right to obtain a patent. As to the latter, the exception is recognized with the requirements as follows. (i) A patent application shall be filed within six month from the date of disclosure, (ii) The purport of taking advantage of the provision of Article 30 shall be stated in the application; and (iii) Documents proving the relevant facts shall be submitted within thirty days from the filing date. In addition, if there are several disclosures before the filing of the patent application, the statement of the purport of taking advantage and the submission of the documents should be submitted as to every disclosure respectively. Under the Korean Patent Examination Guideline, only if the disclosure made after the first disclosure is the same with the first one in contents and closely related with the first one, the statement and the submission of the documents can be omitted. The meanwhile Courts and Intellectual Property Tribunal of Korea judged the relationship of the disclosures very restrictively and rarely admitted the omission of the statement and the submission of the documents. However, recently the Patent Court and Intellectual Property Tribunal of Korea changed their attitude and have been admitting the omission of the statement and the submission of the documents more broadly. Under these circumstances, this article reviewed the previous and recent cases related with Article 30 of Korean Patent Law and suggested desirable interpretation of that.