[거절결정(특)][공2009상,272]
[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(2) on the invention for the use of medicine does not specify the use of active ingredients as specific disease or efficacy, but only indicates the use of active ingredients as a pharmacological, but it satisfies the requirement of claim's clarity since it can clearly grasp specific use of medicine in light of the detailed description of the invention in light of the detailed description
[1] The invention of the use of a medicine constitutes an element of an invention. Thus, in principle, the claim shall clearly state the use of a medicine of a specific substance with the target disease or the efficacy of the medicine. However, even if the use of the medicine of a specific substance is stated only on the pharmacological mechanism, if it can clearly grasp the specific use of the medicine through different statements such as the detailed description of the invention or technical formula, it can be deemed that the claim requirement under Article 42(4)2 of the Patent Act is satisfied.
[2] The case holding that patent claim 2 on the invention for use of medicine clearly indicates the use of nitrogen oxides scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbane scarbs without specific diseases or efficacy, but in light of the detailed description of the invention in light of the detailed description of the invention,
[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)
MCCable v. S. S. S. Ltd. (Attorneys Yellow Young-ju et al., Counsel for the plaintiff-appellant)
The Commissioner of the Korean Intellectual Property Office
Patent Court Decision 2005Heo7545 Decided October 11, 2006
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 clearly states the use of the medicine with a specific substance in the target disease or efficacy (see Supreme Court Decision 2003Hu1550, Dec. 23, 2004). However, even if the use of the medicine with a specific substance is described only in the pharmacological, if it is possible to clearly grasp the specific use of the medicine with a different description such as the detailed description of the invention or technical formula, it can be deemed that the specification of the claim requirement under Article 42(4)2 of the Patent Act is satisfied.
Examining the record in light of the above legal principles, the invention of this case (application number omitted) using the name “the method of reducing the biological concentration of nitrogen oxides and any product useful thereto” is an invention related to the use as a medicine of DNA calcane scarbane scarbane scarbane scarbane scarbane scarbine as indicated in the judgment of the court below. Paragraph (2) of the scope of the patent application of this case is written as “the product for treatment of nitrous scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scarbine scart s.
Nevertheless, the court below determined that the claim No. 2 of the patent application invention of this case did not clearly state the purpose of medicine. Thus, the court below erred by misapprehending the 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 Ahn Dai-hee (Presiding Justice)