존속기간이 연장된 특허권의 효력범위 : 특허법 제95조의 새로운 해석론

In the case where the interpretation of the Article 95 of the Patent Act was in earnest problematic (Supreme Court 17. January. 2019. Sentencing 2017da245798 ruling), the Supreme Court judged that the defendant's generic drug product differed from the patented drug product in terms of salt, but the different salts could have been easily selected by the ordinary person in the art and the pharmaceutical effect of the drug products were substantially the same; and therefore the defendant's generic drug product fell within the scope of the patented drug product whose term was extended. This paper compares domestic and foreign legislative cases concerning the valid scope of patent rights with extended terms, and analyzes the rulings made by the Supreme Court and lower courts. Taking one step further, this paper displays the result of critical review into the existing theory of interpretation for the Article 95 of the Patent Law and presents a new theory that interprets the scope of the term extended patent taking into account the patented drug product and the scope of the patent before the extension of patent term.