진보성, 용이실시 판단에서의 ‘출원일 후 데이터’의 증거능력, 증명력

Under the first-to-file system, early filing is advantageous. As a result, some inventors file before fully recognizing or substantiating the invention’s technical effects. In the chemical and pharmaceutical arts, however, technical effects are central to assessing both enablement (sufficiency of disclosure) and inventive step (non-obviousness). It is therefore common for applicants or patentees to submit post-filing data during prosecution, invalidation proceedings, or litigation to support the asserted effects. In Korea, discussion of the admissibility and probative value of such post-filing data remains underdeveloped. This article examines how post-filing data should be treated and weighed in enablement and inventive-step analyses. To that end, it surveys the law and examination practice in Korea, the United States, the European Patent Office, the United Kingdom, Germany, Japan, and China, and based on that comparative analysis proposes the following principles: 1. A categorical rule that disallows post-filing data should be rejected as inconsistent with R&D and filing practice. 2. Compared with enablement, post-filing data related to inventive step should be more readily accepted. 3. Where the original specification describes the relevant effect, post-filing data should be liberally permitted for inventive-step purposes; for enablement, such data should be allowed only if the original effect disclosure is plausible and sufficiently specific. 4. Decision-makers should distinguish admissibility from probative value: even when post-filing data are admissible, the probative value to be given is a separate judgment. 5. In the inventive-step context, post-filing data carry probative value only if there is a nexus between the data and the full scope of the claims and the evidence is commensurate in scope.