공지예외 제도의 문제점 및 개선방안

Korean Patent Act has been revised to strengthen the convenienceof the applicant with respect to the grace period. However, there hasbeen inconsistent case laws concerning “written statement to that effectand document proving the relevant facts.”The 1st issue is whether the submission of documents for 2nd andsubsequent publications proving the relevant facts could be omittedwhen there were publications of invention more than once. Theguideline of KIPO was revised that the documents for 2nd andsubsequent publications proving the relevant facts can be omitted whenthere are a series of academic publications. However, this guidelinedoes not apply to different type of publicly known cases such asexperiment of his/her inventions and commercial sale of the product. The 2nd issue is whether the amendment of the written statementto that effect is possible. The Supreme Court decided that theamendment is not possible under the prescription of Article 30 (2) ofthe Korean Patent Law. However, there has been controversies in thatthe penalty is too heavy in proportion to the mistake of the applicant. There could be three options. The 1st one is to allow theamendment of the written statement for a certain period after filing ofthe application. The 2nd one is to revise the law so that the written statement and submission of documents at the time of filing are notrequired and that the applicant could submit them anytime when thepatent application is pending. The 3rd option is to revise the law so thatthe written statement and submission of documents are not required likethe 2nd option and that the publication date of the application of theapplicant becomes the filing date in relation to the patent application ofthe 3rd party. Because the application with grace period has been increasing andthe grace period became 12 months since March 2013, the applicationwith grace period will increase continuously and it is right time toreconsider the grace period system in Korea.