特許請求範圍 解釋에 있어서 均等論에 관한 硏究 = (A) Study on the Application of the Doctrine of Equivalents in the Interpretation of the Claims

다국어 초록 (Multilingual Abstract)

In the beginning stage of patent system, the applicants acquired the right only by explaining the contents of the subject matter. But as the technologies get to upgrade so rapidly, the things to infringe another between the inventions get to appear and we are faring the issues about how far the range to be admitted as the patent is.
So, the applicants need to thinking out the system which characterizes the claim limits of the subject matter to be admitted as the patent, as well as explaining the contents of it. That is, we call it, "the claim of the patent".
But in the case of the simple subject matter, it is relatively easy to identify and understand the limits and the meaning of that limits on the claims forms, while the complicated matter with high-tech methodology in nowadays, we can't express exactly the contents of the subject matter, so for the patent-infringed actions it is so hard to realize that limits only by the literal expressions on the forms in the patented invention.
As one of the basic principles in interpreting the meaning of the claim, firstly we may pick up the one that interpretation of the claim should be restricted within the contents of claim on the specification.
However, when not understanding and not defining the technical framework and the claim limits of the patent, we can interpret secondly by the supplements data on the specifications such as the drawings and the descriptions.
It is one of the requirements of the patent law to register the contents made up of necessary factors to the inventions on the claim sheets.
In the case that there is a partial change of the invention but the same identity of that invention is not changed as a whole, if the interpretation strictly made, we get the irrational conclusion that the infringement can not be determined. The Supreme Court have held that the case above must be treated as 'the simple design-around' - that is, the simple design around may be one of the infringement types - without respect to the basic principle discussed above. As a result, the Court sees that simple design-around as one of the technical events on the literal expressions of the claim limits.
However, Although there are the differences between patented-inventions and the factors of the infringed matters, admitting the differences as the simple design-around and including the design-around within the infringement types would be the obscure assertion and the arbitrary attitude to the judgement of infringements. Therefore, we can't expect whether the cases treated are the simple design-around or not and so can't get the rational criterion of the judgement.
By illustrating the effect of the claim limits on the validity of patented-inventions, for the patentee, there should be the anticipation of the limit to the patent, and for the public, that illustration can play a role to define the ineffective range of the patent. To be so, How to interpret the limits of the patent claims must be opened publicly as a tool to understand that meanings.
In fact, much more infringement types are derived from the differences in the partial factors of invention, rather than the infringements from the contravention of the literal meaning. In those cases, the reason we admit that types as infringements is that there are the identities between the patented-inventions and the infringing matters. By nature, the invention is abstractive and the ones are the technical events. Because this abstractive invention should be expressed within the circle of the claim limits, the gap between the inventions as abstractive technical events and the literal expressions on the claim limits would appear inevitably.
Therefore, desirable(or correct) interpretation of the claim limits is to find the substance of invention, that is, the technical event underlying the recordings on the claim limits. And in judging the infringement, we have to focus on whether the matter infringes the patented-inventions or not and whether the matter utilizes the technical events derived from the claim limits or not.
The doctrine of equivalents initialized by U.S. is the theory developed for the purpose of admitting the infringement of the matter using the technical events and finding the technical events with unbiased attitude in the patented-infringement actions.
The reason the doctrine of equivalents is accepted in many judicial precedents, such as the decision of "Byer Geselshaft" of the Supreme Court, the decision of "Ball Spline" of the Japanese Supreme Court and the decision of "Waner Jenkinson" of the U.S. Supreme Court, I think, that the doctrine of equivalent could provide the rational and concrete judgement methodologies in whether the matter is within the identity of the technical events of the patented-inventions or not, in spite of differences between composition factors in both discussed.
Requirements of the doctrine of equivalents adopted by Supreme Court, Japanese Supreme Court and U.S. Supreme Courts, have some differences but have many common judgement factors as usual.
One of the most important requirements is "the interchangeability". The interchangeability can be described as "whether the matter might be the same inventions or not, when the parts of factors as the necessary factors to the patented-inventions are substituted for others". So, this requirement does not have conspicuous differences from "the judgement method of the identification" as accepted so far in our Supreme Court.
And as the next requirement, we can pick up "the known-interchangeability". If the interchanging of the factors in the matter would be the self-evident case that anyone who having ordinary skill in the art to which said subject matter pertains, that interchange should be the infringement of the equivalents.

목차 (Table of Contents)

• 목차 = ⅰ
• 第1章 序論 = 1
• 第1節 硏究의 圈的 = 1
• 第2節 硏究의 方法과 範圍 = 2
• 第2章 特許請求範圍의 槪念 = 4
• 第1節 特許請求範圍의 發達過程 = 4
• Ⅰ. 英國에서의 特許請求範圍 發達過程 = 4
• Ⅱ. 美鬪에서의 特許請求範圍의 發達過程 = 4
• Ⅲ. 우리나라에서의 특허청구범위 발달과정 = 5
• 第2節 特許誇求範圍의 機能 = 6
• Ⅰ.意義 = 6
• Ⅱ. 辯許發明의 技術的 範圍와 保護範圍 = 8
• Ⅲ. 特許請求範圍의 機能 = 9
• 第3章 特許誇求範圍解釋에 관한 原則 및 方法 = 11
• 第1節 特許請求範圍 解釋의 基本原則 = 11
• Ⅰ. 意義 = 11
• Ⅱ. 特許請求範圍 記載 優先의 原則 = 11
• Ⅲ. 發明의 詳細한 設明 參酌의 原則 = 14
• Ⅳ. 出願經過 禁反言의 原則 (Prosecution history estoppel) = 17
• Ⅴ. 公知技術 參酌 및 除外의 原則 = 24
• Ⅵ. 發明者의 認識 = 31
• 第2節 辯許請求範圍 解釋方法 = 34
• Ⅰ. 肩邊經定義 (Peripheral Limitation) = 34
• Ⅱ. 中心限定主義 (Cent.at Limitation) = 36
• Ⅲ. 均等論 = 37
• Ⅳ. 各國의 解釋 方法 = 38
• Ⅴ. 우리나라에 있어서 解釋方法 = 39
• Ⅵ. 小 結 = 41
• 第4章 均等論의 成立과 發達 = 43
• 第1節 意 義 = 43
• 第2節 美國에서의 均等論 = 44
• Ⅰ. 法的 根據 = 44
• Ⅱ. 均等論의 發展 = 45
• Ⅲ. Graver Tank 事件 = 48
• Ⅳ. Huges Acraft 事件 = 50
• Ⅴ. Hilton Davis 事件 = 52
• Ⅵ. Festo 事件 = 60
• 第3節 日本에서의 均等論 = 64
• Ⅰ. Ball Spline 判決의 槪要 = 64
• Ⅱ. 均等論 適用의 要件과 根據 = 65
• Ⅲ. 非本質的 部分 = 66
• Ⅳ. 置換可能性 = 71
• Ⅴ. 置換容易性 = 74
• Ⅵ. 公知技術 = 77
• Ⅶ. 適用 除外事項 = 78
• Ⅷ. 立證責任 其他 = 81
• 第5章 韓國에서의 均等論 = 85
• Ⅰ. 單純한 均等論의 置換 또는 設計變更 = 85
• Ⅱ. "均等"이란 用語를 使用한 判例 = 86
• Ⅲ. 均等과 作用效果 = 88
• Ⅳ. 最近의 均等論에 대한 判例 = 89
• 第6章 結論 = 120
• 參考文獻 = 125
• Abstract = 131