주요 8개국의 특허 진보성에 대한 고찰

최초작성일 : 2024. 02. 08

수정일 : 2024. 02. 08

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본 내용은 지식재산 관련 업무에 꼭 필요한 정보만을 요약한 것이며, 이는 특허관리 소프트웨어에 통합되는 기초자료가 됩니다. 해당 주제와 관련된 질문이나 의견이 있는 경우, 제공된 이메일을 통해 언제든지 문의하시거나 아래의 댓글로 의견을 남겨주세요.

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정보요청 : info@gyeomsabok.com

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"아래의 내용은 이 정보와 함께 하세요. 놀랍게도 더욱 유용해집니다."
I recommend combining the content below with this information. Surprisingly, it becomes even more useful.

• 국내, 해외 국가별 특허검색사이트 및 특허검색국가순위

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[기타] 특허 주요 8개국 (한국, 중국, 일본, 미국, 유럽연합, 영국, 독일, 인도)에 규정된 "진보성"에 대하여,

 

진보성에 대한 정의 / Definition of Inventive Step

"진보성"이란 특허를 받으려는 발명이 기존의 기술이나 공개된 정보(선행기술)와 비교했을 때 명확한 차이가 있어야 하며, 해당 분야의 전문가(당업자)가 쉽게 생각해낼 수 없는 수준의 창의성을 포함해야 한다는 것을 의미합니다. 진보성은 특허가 부여될 수 있는 세 가지 기본 요건 중 하나로, 신규성과 산업상 이용 가능성과 함께 평가됩니다. 특허 출원된 발명이 선행기술에 비해 단순한 변형이나 개선에 불과하다면, 그 발명은 진보성이 없는 것으로 간주되어 특허를 받을 수 없습니다.
"Inventive step," also known as "non-obviousness," requires that a patentable invention must exhibit a significant advancement over the prior art or the publicly available information. It must not be obvious to a person skilled in the art, incorporating a level of creativity that goes beyond a mere improvement or modification of existing technology. Inventive step is one of the three fundamental criteria for patentability, along with novelty and industrial applicability. If an invention is merely a trivial alteration or enhancement of what is already known, it is considered to lack an inventive step and, therefore, cannot be patented.

 

 

Title:

Comparative Analysis of Inventive Step Requirements in Global Patent Law

1. South Korea - Patent Act Article 29(2)

(Korean Intellectual Property Office, KIPO)

• Legal Provision: Article 29(2) of the South Korean Patent Act provides the standard for assessing inventive step, stating that an invention is considered to have an inventive step if it is not easily made by a person skilled in the relevant field of technology.
• Explanation: In South Korea, the invention must significantly contribute to the technological advancement and not be easily derivable by a skilled person in the field.

2. China - Patent Law Article 22

국가지식산권국 (China National Intellectual Property Administration, CNIPA)

• Legal Provision: Article 22 of the Chinese Patent Law defines the criteria for inventive step, considering an invention to have an inventive step if it has prominent substantive features and represents a notable progress.
• Explanation: In China, the invention must show a clear technological advancement over existing technology.

3. Japan - Patent Act Article 29

특허청 (Japan Patent Office, JPO)

• Legal Provision: Article 29 of the Japanese Patent Act stipulates that an invention is considered to have an inventive step if it is not publicly known or obviously derived from public knowledge.
• Explanation: Japan recognizes an inventive step when the invention is not easily deducible from public knowledge by a skilled person.

4. United States - 35 U.S.C. § 103

미국특허청 (United States Patent and Trademark Office, USPTO)

• Legal Provision: 35 U.S.C. § 103 sets out the criterion for non-obviousness, stating that an invention should not be obvious to a person skilled in the art at the time the invention was made.
• Explanation: The U.S. applies an "obviousness test" to determine if the invention is sufficiently different from existing technology.

5. European Union - European Patent Convention (EPC) Article 56

유럽특허청 (European Patent Office, EPO)

• Legal Provision: Article 56 of the EPC states that an inventive step is present if the invention is not obvious to a skilled person in the art.
• Explanation: In the EU, the invention must not be easily derivable from the state of the art.

6. United Kingdom - Patents Act 1977, Section 3

영국지식재산청 (Intellectual Property Office, IPO)

• Legal Provision: Section 3 of the UK Patents Act 1977 outlines the requirement for an inventive step in the UK. It states that an invention is considered to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art.
• Explanation: In the UK, similar to the EU, the test for inventive step involves determining whether the invention would have been obvious to a skilled person in the relevant field at the time of the patent application, based on the prior state of the art. This means the invention must demonstrate a non-obvious advancement over the existing knowledge or technology to be patentable.

7. Germany - German Patent Act §4

독일특허청 (German Patent and Trade Mark Office, DPMA)

• Legal Provision and Explanation: Germany follows the EPC regulations, and the assessment of inventive step in Germany is similar to that of the European Patent Convention.

8. India - Patents Act Section 2(1)(j)

인도특허청 (The Office of the Controller General of Patents, Designs & Trade Marks)

• Legal Provision: Section 2(1)(j) of the Indian Patents Act defines inventive step as a feature that makes the invention not obvious to a person skilled in the art and involves technical advancement or economic significance.
• Explanation: In India, the invention must show a technical advancement or economic significance and not be obvious to a skilled person.

 

Differences in Inventive Step Requirement and Patent Application Strategy

• Differences: There are subtle differences in how each jurisdiction defines and assesses an inventive step. For example, the U.S. emphasizes the "obviousness test," while the EU focuses on whether the invention is derivable by a skilled person. India considers technical advancement and economic significance.
• Considerations and Strategy: Applicants should carefully analyze the legal and case law in each jurisdiction to meet the inventive step requirements. It's crucial to seek advice from experts in the specific technical field and adjust the application content according to the inventive step standards of each country. For international applications (PCT applications), strategically planning the application by considering the inventive step criteria of the targeted jurisdictions is vital.

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References

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