선택발명의 신규성, 진보성 판단

Selection inventions deal with the selection of individual elements, sub-sets, or sub-ranges, which have not been explicitly mentioned, within a larger known set or range. In determining the novelty of a selection, it has to be decided, whether the selected elements are disclosed in an individualised (concrete) form in the prior art. A selection from a single list of specifically disclosed elements does not confer novelty. However, if a selection from two or more lists of a certain length has to be made in order to arrive at a specific combination of features then the resulting combination of features, not specifically disclosed in the prior art, confers novelty (the “two-lists principle”). A sub-range selected from a broader numerical range of the prior art is considered novel, if each of the following three criteria is satisfied: the selected sub-range is narrow compared to the known range, the selected sub-range is sufficiently far removed from any specific examples disclosed in the prior art and from the end-points of the known range, the selected range is not an arbitrary specimen of the prior art, i.e. not a mere embodiment of the prior art, but another invention (purposive selection, new technical teaching). In the case of overlapping ranges (e.g. numerical ranges, chemical formulae) of claimed subject-matter and the prior art the same principles apply for the assessment of novelty as in other cases, e.g. selection inventions.