特許審判制度에 관한 硏究

다국어 초록 (Multilingual Abstract)

This thesis is: a research regarding the Patent Trial Institution in KOREA. The patent is an institution of giving exclusive jurisdiction to the inventor, and it contributes to industrial development of a nation by opening to the public of inventor's invention. Yet the origin of the patent institution is uncertain. These days interests in the patent institution are rapidly increasing in KOREA as well as in foreign nations. The discussions about the patent Trial Institution, along with those about several other patent institutions, the brisk lately. To find measures to improve the KOREAN Patent Trial Institution, those of the United kingdom, the U. S. A. West Germany, Japan and the European Patent Office were studied and classified into three types: Special Court Type, General Court Type and Patent Office Trial Board type. The special court type found in the United Kingdom, the U. S. A. and West Germany is the most ideal and has the highest, independency and speciality of patent trial institution. The general court type operating in Japan guarantees the highest independency. The patent office trial board type, which has a low independency yet, a high speciality, is found in the European patent office as well as in the KOREAN Patent Office.
Before 1977 in the United Kingdom, the patent trial institution in Patent Law developed differently from that of the U. S. A. and West Germany. The United Kingdom had dealt with patent trials in the general courts, while west Germany and the U. S. A. through the trial board of patent office or special court. However, the Patent Court was established in 1977 and dealt, with the appeals of Comptroller's rejection and infringement cases. Therefore it, guaranteed both independency and speciality.
In the U. S. A. the newly established Court of Appeals for Federal Circuit (C. A. F. C) now has jurisdiction over the appeal from the decision of the Patent and Trademark office and over the appeal from the district court patent application rejection cases. So as to solve the problem of speciality deficiency of the general court and of inconsistent decisions among courts. Especially the C. A. F. C. has exclusive jurisdiction over the appeal from the district court in infringement cases. Geographically distributed Federal Circuit Courts, had taken charge of infringement cases before the establishment of the C. A. F. C. in October, 1982; but it had been criticized as co-contradictory and time consuming for its respective contrary decision. Since the establishment, the C. A. F. C. has had exclusive jurisdiction over the appeal of infringement cases and consistent rapid decisions are expected. The judges of the C. A. F. C. Consisting of 12 members are appointed under the agreement of the Senate. If there is a dissatisfaction about the C. A. F. C. 's decision, an appeal can be made to the Supreme Court.
In West Germany, the appellate board of trial in the patent office had taken charge of the appeals until the Federal Patent Court was established in 1961. The judges of the patent court, are appointed for life, thus they are independent of political circumstances. They are recruited from the patent office; and the forum consists of the technical and legal members according to the cases. Thus the speciality of the patent trial is guaranteed.
In Japan, appeals over the decision of the trial board of the patent office were dealt with by Tokyo High Court, therefore it is classified as a "general court" type. Before 1948, Japan was of the patent office trial board type. Appeals against examiner’s rejection were dealt with in the appellate board of trial which is a division of the patent office. After World war, in case of dissatisfaction over the decision of the appellate board of trial, it is appealed to Tokyo High Court which is general court. Therefore, the patent trials were judged four times at that time. After 1959, Japan adopted the perfect general court type which enabled the direct appeal to Tokyo High Court in case of dissatisfaction against the decision of the trial board of the patent office. However, its adoption of the general court type guaranteed independency, but resulted in a low speciality.
The European patent office is the product, of regional cooperation in patents of the Western European Countries, and of the advances in legal understanding of patent system. And it, belongs to "patent office trial board" type into which the Korean institution is also classified. The Patent Trial Organization of EPO consists of the Board of Appeal and the Enlarged Board of Appeal. The Board of Appeal and the Enlarged Board of Appeal are similar to the special court of West Germany in their constitutions; they consist of the number of the legal and technical members according to the cases.
And the European Patent Convention E. P. C. has provisions regarding the independency of judges to gurantee the independency of patent trials.
The Patent Trial Institution in KOREA belongs to "patent office trial board" type. It is easy to maintain the speciality but difficult to guarantee perfect independency because the patent office, a division of the Executive, deals with the cases. Therefore, there is another suggestion that the function of the appellate board of trial be transferred to the Seoul High Court just as in Japan.
The current, problems and improvements of the KOREAN Patent Trial Institution are as follows;
* The Problems
1) Since the patent appeals are dealt with by the division of patent, office, Speciality is guaranteed but independency is difficult to be guaranteed.
2) Institutionally, it, is difficult for the patent office judges to judge patent cases independently.
3) In the Supreme Court, several co-contradict, inconsiste tent decisions are discovered in the cases regarding patent trials.
* The improvements
1) Special court, which guarantees both the speciality and independency of the patent trials should be established.
2) Qualifications of the patent office judges should be enforced and the status should be guaranteed so as to judge patent cases independently.
3) Co-contradict, decisions of the Supreme Court should be arbitrated and the consistency of decisions on patent trials should be established.

목차 (Table of Contents)

• 목차
• ABSTRACT = iv
• 第1章 序論 = 1
• 第1節 問題의 提起와 硏究目的 = 1
• 第2節 硏究의 方法과 範圍 = 3
• 第2章 特許審判 및 審判機關 = 4
• 第1節 審判의 槪念 = 4
• I. 審判의 意義 및 本質 = 4
• II. 審判의 構造 = 7
• 第2節 審判의 分類 = 8
• I. 請求趣旨에 의한 分類 = 8
• II. 審級別에 의한 分類 = 9
• III. 審判構造에 의한 分類 = 10
• 第3節 審判의 類型 = 11
• I. 特許無效審判 = 11
• II. 訂正許可審判 = 14
• III. 訂正特可無效審判 = 16
• IV. 權利範圍確認審判 = 17
• V. 拒絶査定에 대한 不服抗告審判 = 19
• VI. 審決에 대한 不服抗告審判 = 22
• 第4節 審判機關 = 24
• I. 審判機關의 構成 = 24
• II. 審判官의 除斥·忌避 = 26
• 第5節 審判의 審理 = 31
• I. 書面審理主義와 口頭審理主義 = 31
• II. 公開主義와 職權主義 = 33
• 第3章 特許審判 制度의 問題點과 改善方向 = 36
• 第1節 制度的인 問題點과 改善方向 = 36
• I. 抗告審判 機能의 管轄問題 = 36
• II. 審判官制度의 問題 = 38
• III. 權利範圍確謝審判의 問題 = 40
• 第2節 實質的인 問題點과 改善方向 = 47
• I. 大法院 判決을 通해본 問題 = 47
• II. 高等法院 法官과 特許廳 抗告審判官의 比較 = 49
• 第4章 外國의 特許審判 = 51
• 第1節 特別法院 = 51
• I. 英國 = 51
• II. 美國 = 54
• III. 西獨 = 59
• 第2節 一般法院 = 62
• I. 日本特許制度의 沿革 = 62
• II. 日本特許審判制度의 特徵 = 69
• III. 日本特許審判制度의 再考 = 73
• 第3節 特許廳 審判所 = 74
• I. 유럽 特許廳의 業務와 審判 = 75
• II. 유럽 特許廳의 構成 = 76
• III. 유럽 特許廳 審判機關의 特徵 = 77
• 第5章 結論 = 79