등록디자인의 권리범위와 선행디자인 -선행물품의 조밀도가 등록디자인의 권리범위를 어떻게 제한하는가?-

Design patent law awards the inventor who added the design value by creating the novel and nonobvious design. However, in estimating how much the value added cannot be counted independently from the already existed prior designs in the same area of items. Also in estimating the added value, whether the area is very crowded with numerous prior designs or not should be considered. If not, the proper range of his creation may not be estimated objectively. The Supreme Court of Korea takes the ‘dominant feature doctrine,’ which meas that among the elements of registered design the only prominent ones for the eye’s of the purchasers can be claimed as a scope of patent. All the other elements not elected as prominent to the purchaser are beyond the scope of the patent claim. This doctrine, however, is criticized firstly, it allows too much scope of claim area beyond the its proper one, especially the area is very crowded one. And secondly it is a mere subject test give no clear objective criteria in comparing the plaintiff’s registered design and defendant’s infringing one. To solve the said doctrines’ deficits, I suggest the 3 party comparison test, which introduce the prior designs to comprehend the context of the prior art and enhance the background knowledge of the purchaser. As a result this approach can solve the problems firstly, by eliminating the commonly used elements from the claim scope, secondly, allowing the pioneer design having more broad claim scope than not, thirdly, by referencing the prior art designs the court may elect the important point objectively, fourthly, the court can define the novelty point of the registered design by objective measure.