디자인의 신규성 상실 예외규정과 자유실시디자인 항변 - 대법원 2023. 2. 23. 선고 2021후10473 판결을 중심으로 -

This article intends to contribute to the examination of recent controversial ruling (2021Hu10473, ruled on Feb. 23, 2023) by the Supreme Court regarding the eligibility of a defendantʼs plea of freely workable design based on designs that were publicly known or were made publicly available. Specifically, concerning the presented question whether a defendantʼs plea of freely workable design can be allowed, based on designs that were publicly known or were made publicly available in Korea or a foreign country, prior to the filing of the application for design registration, the Supreme Court held that a defendantʼs plea of freely workable design is not acknowledged, considering legislative intent of the exception to lack of novelty clause (Art. 36) and legal principle of the freely workable design under the Design Act. The article concludes that the Supreme Courtʼs ruling is reasonable as well as is aligned with the purposes of Design Act, in terms of (a) legislative intent of the exception to lack of novelty clause, (b) distinction between the designs in public domain and the exclusive rights of registered designs, (c) balance of interests between design creators and third parties, and (d) development of the design industry. This article also urges the Supreme Courtʼs ruling need to be established as lower courts precedents in Korea.