암 치료 의약의 용도발명에 있어 진보성 판단기준 - 특허법원 2016. 1. 21. 선고 2014허4913 판결을 중심으로 -

According to the Patent Act, in order to register a patent, the candidate must be industrially applicable, novel and non-obvious. Among these conditions, the most important one, be it theoretical or practical, is non-obviousness. It requires that the new patent candidate has achieved meaningful advancement in comparison to prior technology but due to the nature of the condition, it is very difficult to find an objective standard upon which to compare. Traditionally, Korean courts of law compared prior technology with the patent candidate and judged whether it non-obvious by contemplating if it was easily creatable but that standard was always problematic as it was very subjective and equivocal. In the United States, the standards for judging whether a candidate was non-obvious were established through the Graham v. John Deere Co. case and the CAFC’s TSM Test. However, in 2007, with the final verdict on the KSR v. Teleflex case, the limits of the TSM Test were pointed out. Under such circumstances, the Korean Supreme Court came to rule, right after the KSR verdict was announced, that a hindsight was not allowed in judging non-obviousness and also presented non-obviousness judgement standards in accordance with the TSM test and other supplementary criteria. Although this judgment by the Supreme Court is very important in its own right, it is still too abstract and needs to be refined further. However, in this ruling, in consideration of the unique characteristics of pharmaceutical substances for the treatment of cancer, the non-obviousness of a new pharmaceutical substance is only denied when the successful discovery of a pharmaceutical substance is rationally expectable from prior technology rather than if the mere possibility of such a discovery is anticipated. As such this ruling is meaningful in that it has added to the general and abstract judgment standard a consideration of the unique characteristics of a specific technological domain. There is a need to establish a more specific non-obviousness judgment standard for other technological domains as well in the future by referring to ruling.