신규성의 실질적 동일성 판단기준 - 대법원 2014후1181 판결을 중심으로 -

It was judged in the Supreme Court that a novelty can be applied in a case where an invention described in claims is identical with a cited invention as well as a case where an invention described in claims is substantially identical with a cited invention, according thereto, in the examination criteria, it is regarded that there is no novelty in case where both have the substantial identity and a patent cannot be accepted. Although premising the case where the invention described in claims is substantially identical with the cited invention in the Supreme Court, it would have been to be the issue whether or not both have the substantial identity is realized by what criteria and determination. In order to determine the novelty, first, the determination criteria in that the gist of the invention can be accepted by referring to description of invention in case where the gist of the invention cannot be accepted only by the item described in claims was suggested. Next, after accepting the gist of the invention described in claims, it is determined whether or not the gist of the invention has the identity with the cited invention. Then, if it would be identical therewith, a patent cannot be obtained, however although it is the case where there is a difference, it cannot be accepted to be determined that all would have the novelty. Although the invention described in claims and the cited invention are not completely identical, it should be interpreted not to have the novelty if the difference (i) is merely a simple addition, change, cancellation, etc. of the well known, publicly used technology in the concrete means for solving a subject, (ⅱ) has no new effect obtained thereby, (ⅲ) is merely an extrinsic item which does not substantial influence on the technological concept of the invention.