한국 특허소송에서 진보성 판단방식의 변화과정, 개선노력과 향후 방향 –미국과의 비교, 특허법원의 새로운 경향 및 진보성 판단의 실증을 중심으로

Over the past several decades, non-obviousness has been a hot potato in patent litigations in Korea and criticism is increasing as to the expost determination of non-obviousness. Against this back drop, court-driven efforts are gaining momentum in order to improve the method of determining non-obviousness. In this paper, the root cause of ongoing controversy surrounding determination of non-obviousness in patent litigations is found in the method of determining non-obviousness, i.e., focus on substantive elements based on synergy effect. Furthermore, a comparative method (Korea vs. U.S.) along with an empirical analysis is used to identify the cause as well as subtle but nonetheless significant changes in court rulings especially in the Patent Court of Korea as to determining non-obviousness. This article first examines how the method of determining non-obviousness has evolved in the U.S. breaking from the focus on substantive elements and centering on procedural elements (i.e., motivation in combining prior art as evidence of non-obviousness) and then goes on to explore how the two competing methods are affecting patent litigations in the U.S. Subsequently, this article looks at Supreme Court of Korea’s Decisions in order to understand how the method of determining non-obviousness has changed and why non-obviousness continues to be determined based on substantive elements. Furthermore, this article depicts the Patent Court of Korea’s small but important changes over the past ten years as to rulings on the method of determining non-obviousness. Through an empirical analysis, the Patent Court of Korea’s Decisions in 2005, 2010, and 2015 are examined in order to find out the extent of impact that changes in method of determining non-obviousness had on rulings in patent litigations. Lastly, this article points out the need to improve the current practice of qualifying prior art without limitation.