객관적 지표(Objective Indicia)에 기한 발명의 진보성 판단론

Abstract

It is integral to avoid the subjective and hindsight bias in determining inventive step. For this goal, Europe and the U.S. have had various lists of objective indications to imply inventive step of inventions. After KSR (2007) decision, the importance of secondary factors are being revisited and emphasized further in the U.S. to substitute the old anti-hindsight bias resolutions: TSM test. In addition, some recent studies propose new objective indicia to decide the Non-obviousness. Among them are the theory of ‘Timing approach' and ‘Cost-Benefit approach'. Some scholars contend that the court could reshape patent system for industry specific manner using Non-obviousness determination as policy leverage. In Europe, generally objective indicia are qualified equal with technical evaluation in inventive step decision. On the other hand, in Korea, the consideration of secondary factors takes very feeble portion in inventive step determination and is even being ignored in practice, which is far from reasonability. Referring to the lessons of American and European experiences and updated studies, it is desirable for Korean courts to give much more stress upon the objective indicia in inventive step determination than the present.