Patents when the prior art has been significantly improved compared with the prior art known.

In a case where the operating effect of the applied technology has been significantly improved compared to the operating effect of the prior art, it is reasonable to recognize the inventive step of the application and grant a patent in light of the purpose of the patent system aimed at promoting and developing the inventive step of the prior art. Therefore, the existence of inventive step should be determined.

Article 6 of the Patent Act

Supreme Court Decision 80Hu111 Decided June 8, 1982

Ep & Homan - Attorney Lee Byung-ho et al., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 348 decided October 29, 1982

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The grounds of appeal by the claimant are examined.

1. Article 6(2) of the Patent Act provides that an invention claimed in a patent application can easily be made by a person with ordinary knowledge in the art to which the invention pertains, by means of an invention described in the publicly known or distributed publication, if the invention is an invention described in the art to which the invention pertains, the patent cannot be granted. The purport of the provision is that even if the invention is a new technology that can be easily made from the existing technology, if it is a creation that can be easily made from the existing technology, the invention lacks inventive step, and thus, the patent is not granted. However, the standard of determining the degree of the difficulty of the creation to estimate the existence of inventive step is not established, but it is reasonable to recognize the inventive step of the patent application in light of the purpose of the patent system to promote the development of inventive step, if the effect of the patent application is considerably improved compared to the effect of prior art.

2. According to the reasoning of the original decision, the court below maintained the rejection of the patent on the ground that the invention in this case pertains to the manufacturing method of DNA (D)-Mostheme, and there is a difference between the starting material and the final living material 21 location of the cited invention as a hydrogen, and the equipment of the same location of the quoted invention is humpeds or a hump hump, as the starting material and the final living material are a hydrogen. However, other hump and the basic frame of the quoted invention are the same entirely as the quoted invention, and the structure of the hump and its structure are extremely similar to that of the quoted invention, and it is an exaggerated figure that the applicant claims the effect of the pharmacological action, and therefore, the invention in this case can easily be seen if it is a person with ordinary knowledge in the relevant technical field from the quoted invention, and thus, falls under Article 6 (2) of the Patent Act.

However, if the manufacturing method which differs from the time of original adjudication is made on the chemical structure of the starting material and the final living material compared with the cited invention, and the effect of the pharmacological action has been remarkably improved compared with the cited invention, it is reasonable to view it as a creation of inventive step-oriented technology in light of the dual rule as above, and barring special circumstances, it is not the creation that can be derived from the prior art by self-reliance with the ordinary knowledge of the room, barring special circumstances. According to the records, the applicant's assertion that the effect of the pharmacological action of the patent application invention of this case has been significantly improved in the test of comparison with the salt by the quoted invention. Thus, the court below should have conducted an examination of evidence on this issue, deliberated on the difference in its effect, and judged the inventive step-orientedness, and should have determined the inventive step-orientedness, the court below erred in the misapprehension of legal principles as to the inventive step-oriented invention, which can be easily derived from the cited invention without any indication or public hearing.

3. Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office for further proceedings. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)