Die Schutzfähigkeit im deutschen Patentrecht

서지정보

· 발행기관 : 아시아.유럽미래학회
· 수록지 정보 : 유라시아연구 / 7권 / 2호 / 135 ~ 151페이지
· 저자명 : 최상필

초록

A person shall be entitled to a patent unless the invention was known or used by others in country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in country, more than one year prior to the date of the application for patent in country, or he has abandoned the invention, or the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in country.
A patent may not be obtained though the invention is not identically disclosed or described as set forth in Patent Law, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Inventions have to be new and progressive so that patents can be granted to. That is to say, inventions should not be something to be invented with old and outdated technical methods. Therefore, inventions, in connection with the grant of patents, need to be reviewed in the field of technology. Under German Patent Law, new inventions have to satisfy the conditions of patents that are stated in article 1, section 1 of Patent Law and the concepts and contents of the conditions are described in detail in the subsequent article 3 of German Patent Law .
The conditions of patent granting under article 29 of Korean Patent Law, namely industrial utility, novelty, progressivity correspond with the conditions of article 1, section 1 of German Patent Law. However, there do not exist Korean regulations in accord with article 3 of German Patent Law. Accordingly, difficulty of establishing the specific standards for interpretation of these conditions occurs in process of reviewing patent applications. Therefore, individual regulations for the relevant conditions have to be enacted so as to judge consistently whether the patent applications meet the conditions of patent granting and in this point of view, it is thought that article 3 of German Patent Law can provide a model.

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