특허분쟁에서의 신의성실원칙의 적용 - 출원경과 금반언의 원칙을 중심으로 -

Applications for patents are increasing rapidly due to the growing importance of intellectual properties in modern economics. Accordingly, patent disputes are also increasing recently. To resolve patent disputes such as infringement suits the scope of patent claims must be specified at first. In principle, the scope of patent claims are decided by all elements of claims as described. However, the specification of the patent and drawings attached in the application are often referred. In addition, the claims are analyzed by studying all of the relevant patent documents such as the replies of the applicant during the prosecution of the patent application. According to the Doctrine of File Wrapper Estoppel, after the amendment narrowing the claim was made to avoid the rejection of the application the patentee will not be allowed to state that the claim was meant to be broader than that which the narrowing process produced. The Doctrine of File Wrapper Estoppel has been developed vastly in patent disputes of the United States, and there are many cases citing the doctrine in patent disputes of Korea nowadays. The Doctrine of File Wrapper Estoppel may be understood as the implementation of the Good Faith and Fair Dealing Principle in patent disputes. Onepurpose of the patent system is to encourage the development of technology by making patent applications public documents, thereby disclosing to everyone information about new inventions. Patentees are granted exclusive rights for the inventions as a reward for the disclosure of the inventions. To prevent unexpected damage of a third party, the documents describing all registered patents are published by the patent office. Therefore, the faith of a third party who has reliance on the patent system must be protected by disapproving contradictory claim of the patentee. The interpretation that the Doctrine of File Wrapper Estoppel may be understood as the implementation of the Good Faith and Fair Dealing Principle in patent disputes allows a systematic approach to determine cases which the Doctrine of File Wrapper Estoppel may be applied. Arguments contradictory to previous amendments are reprehensible and therefore should not be allowed by the Doctrine of File Wrapper Estoppel. For a case that the applicant makes an amendment narrowing claims to satisfy patentability of the invention with regard to prior art the Doctrine of File Wrapper Estoppel must be applied and later the patentee will not be allowed to argue broad claims. Also, for a case that the amendment to avoid rejection of the application with no reference of any prior art results in narrow claims the doctrine should be applied. However, the Doctrine of File Wrapper Estoppel should not be applied for cases that amendments are made to correct erroneous statements or to clarify indefiniteness.