디자인특허의 권리범위의 한정론에 관한 비교법적 고찰

The claim scope of design patent is the overall impression made by the visual expression which is made by the features consisting the drawings in the patent application. The visual character, however, gives rise to the problem of subjective nature in defining the scope of design patent claim. To objectively define the claim scope, South Korea and Japan Supreme Courts use the Point Test, where only the prominent features for the purchaser are included in the claim scope and the others are excluded from it. So there are several criticisms blaming that the said Point test does not solve the problem at all. European Union’s Mode Test tries to solve this problems by taking the Mode Test where the collage of the micro differences between the registered design and the alleged infringing article constitute the claim scope. European Courts, however, compare the registered design and infringing article side by side which granting the registered design too broad claim scope. Afterall the Mode Test which may give rise to the uncertainty and subjectivity of the claim scope. US’ CAFC takes the 3 Party Test to get rid of the uncertainty and subjectivity of claim scope. Under the 3 Party Test, the trial courts introduce the prior arts as a narrowing down measures in defining the claim scope and by introducing them and through them the intelligence of the ordinary observer is more enhanced than before that he or she can not be easily deluded the ostensible differences between the registered design and allegedly infringing article. By doing this Test CAFC can limit the claim scope more clear and more objective than without it. South Korea & Japan and European Union may refer CAFC’s 3 Party Test in solving the uncertainty and subjectivity of the claim scope of design patent.