특허균등침해의 출원경과금반언과 출원인의 의도참작 - 대법원 2023. 2. 2. 선고 2022후10210 판결을 중심으로 -

In a patent infringement lawsuit, if the applicant intends to consciously exclude or limit the scope of the claim in order to obtain a patent, the equality infringement is denied by applying the principle of the prosecution history estoppel, but the criteria and target for judging the consideration of applicant’s intention were not clear. In relation therewith, in the Supreme Court’s sentence of February 2, 2023, the ruling of 10210 after 2022, by summing up the various circumstances revealed in the application procedure including reasons for correction, the criteria for judging whether the applicant’s intention exists were presented. In the case of considering in the applicant’s intention by “comprehensively summing up various circumstances revealed in the application procedure”, the third party should investigate and analyze not only the opinion but also all the actions and claims of the applicant, and design an avoidance, this is a avoidance design from patent publications with disclosure functions, and it does not meet the purpose of the patent system to promote industrial development by making improved inventions to avoidance design from patent publications with disclosure functions. Therefore, the principle in that the consideration of applicant’s intention for applying the principle of the prosecution history estoppel is judging only the claims stated in the opinion (examination, re-examination) should be re-established.