부분디자인 보호 요건에서의 도면에 관한 실무차이 비교- 한국, 미국, 일본, EU를 중심으로-

The objectives of this study are to examine the differences of drawing manner of representation concerning requirements and examination practice in partial design registration at KIPO, USPTO, JPO and OHIM. As a result, a fact that KIPO has the guideline and manner of examination similar to JPO was discovered. In the examination practice at KIPO, partial design is distinguished from whole claimed design. Also, requirements of the design definition, the clarity in drawing, and the unity of design were rigorously examined in the procedure. In USPTO and OHIM, a tendency that a scope of claim is accepted flexibly and drawing manners of representation in partial design application do not bring about a irregularity in formality check was discovered. It might be suppose that an idea which applicant can decide freely the subject matter and scope of claim in views has an influences on the manner of examination procedure. From mentioned above of the KIPO, the situation could cause several problem that is apart from the international trend of design protection and restricts applicant’s profit due to weaken the purpose of design protection as an partial design registration. Following direction of policy improvement for protection of partial design is suggested. Firstly, in the definitional requirement of partial design, it is necessary to be interpreted extensively based on the concept that claimed portions as creative elements are defined depending on applicant’s will. Secondly, in the requirement of drawing manner, it should change the viewpoint that interprets the scope of claim in views with practical and reasonable perspective. Thirdly, concerning requirement of unity of design, the unity of shape might be fulfilled while claimed portions corresponded with the created portions motivated by designer’s imagination. And the requirement of unity of function could be fulfilled in case of that claimed portions have function under usually mutual relations in an article.