자신의 선행판매 행위에 따른 특허 신규성상실 여부에 관한 비교법적 연구

Applicants generate profits through commercial activities that sell their inventions to the market, and in the process, commercial sales inevitably take precedence before the filing date. In the case of the United States, the type of prior art is directly defined as a type of “On Sale” invention through the Patent Law, while in Europe, Japan, and Korea, it is defined as a comprehensive concept of the invention that was made public or used before the filing date as the basis for prior art. Due to this different definition of prior art by country, the criteria for judging "On Sale" as a prior art are also different from country to country. Meanwhile, relief measures to prevent loss of patent rights due to pre-sale activities are also adopted by different countries, and the exception period of loss of novelty is recognized as a means of relief due to the disclosure of the invention of the applicant, and the period of exception of loss of newness is one year (12 months) in the United States, Japan and Korea, and six months in Europe. In addition, the criteria for judgment of major countries, including the United States and Korea, differ in commercial contracts or sales activities under mutual confidentiality agreements prior to patent application. While the U.S. judges commercial “sales” acts on the basis of their own, Europe and Korea have the judgment criteria as a prior art based on whether the invention's substance has been opened to the public under these “sales” acts. Due to these differences in national standards, many applicants face patent invalidation on the basis of the loss of novelty of inventions resulting from pre-sale activities before filing date. In this paper, I would like to examine the criteria for judging and remedies of our own pre-sale behavior, which are different from country to country, through comparative legal research, and propose the applicant's application strategy to secure patent rights based on pre-sale activities.