[거절결정(특)][미간행]
[1] Whether the use of a medicine for a specific substance can be seen as satisfying the requirement for clarity of a claim under Article 42(4)2 of the Patent Act even in cases where the use of medicine for a specific substance is written only with the pharmacological mechanism (affirmative with qualification)
[2] The case holding that the claim(s) of the patent on the invention for the use of a medicine for which the name "the method of activeness of potential active substance A2 to restrain the efficacy of the invention for the patent application," is expressed as a pharmacological mechanism that restrains the efficacy of the drugs for the use of the invention for the patent application, and although the use is expressed as a pharmacological mechanism that reduces the efficacy of No. 1 or No. 2 of the spospatha No. 2, in light of the detailed description of the invention, it can clearly grasp specific medicinal use that ultimately reduce the skin infection, etc. when considering the detailed description of the invention, the claim's clarity requirement is satisfied
[1] Article 42 (4) 2 of the Patent Act / [2] Article 42 (4) 2 of the Patent Act
[1] Supreme Court Decision 2003Hu1550 decided Dec. 23, 2004 (Gong2005Sang, 216) Supreme Court Decision 2006Hu3564 decided Jan. 30, 2009 (Gong2009Sang, 272)
엥겔하드 리옹 (소송대리인 변리사 이덕록)
The Commissioner of the Korean Intellectual Property Office
Patent Court Decision 2007Heo1909 Decided November 22, 2007
The judgment below is reversed, and the case is remanded to the Patent Court.
We examine the grounds of appeal.
In the invention of use of a medicine, since the use of a medicine with a specific substance constitutes an element of the invention, the claim scope of the invention shall clearly state the use of the medicine with a specific substance on the target disease or efficacy of the medicine. However, even if the use of the medicine with a specific substance is stated only on the pharmacological mechanism, if it is possible to clearly grasp the specific use of the medicine through different statements in the specification, such as the detailed description of the invention, or technical formula, it can be deemed that the requirement for clarity of the claim under Article 42(4)2 of the Patent Act is satisfied (see Supreme Court Decision 2006Hu3564, Jan. 30, 2009).
Examining the record in light of the above legal principles, the patent application invention of this case "(Patent No. 2003-17869)" includes an invention relating to the use as a medicine, such as 4th diversary extractions, e.g., e., dives extractions, lives extractions, lives extractions, lives extractions, lives extractions, lives extractions, or 2th lives extractions of livesynaco, or a combination of lives, which include at least two lives obtained from lives extractions of lives A2 or lives extractions of lives A2th lives extractions, which include lives extractions of lives, lives extractions of lives, and lives extractions of lives, which are ultimately relevant to lives and lives extractions of lives.
Nevertheless, the court below determined that the claim No. 24 of the patent application invention of this case did not clearly state the purpose of medicine. The court below erred in the misapprehension of legal principles as to the requirement for clarity of the claim, which affected the conclusion of the judgment, and the ground of appeal assigning this error is with merit.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Nung-hwan (Presiding Justice)