수상 도서
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이 책은 한국의 특허 업계에 종사하는 실무자에게 필요한 정보를 제공하고자 한 철저한 실무서입니다. 중국의 특허 실무에 관련된 자료들에 담긴 내용을 최대한 객관적으로 전달하고자 중국 특허 심사에 대한 가장 기본적인 규범인 2010 <专利审查指南>과 중국 전리국에서 제공하는 다양한 자료들을 기본으로 하면서 중국 현지의 특허 관련 서적들, 판례집 등을 참고하였습니다.
기업에 소속된 특허팀 종사자이든 혹은 그 기업을 대리하는 대리인이든, 특허 실무자가 특정 국가의 특허 심사 규정이 어떠한지, 실제 심사 실무는 어떻게 이루어지는지에 대한 정보를 많이 보유할수록, 해당 국가에서 좋은 특허권을 얻어 낼 가능성은 높아질 것입니다.
중국에 진출하려는, 또는 중국에 이미 진출한 한국 기업이 중국에서 좋은 특허권을 획득하는 데 이 책이 조금이나마 기여할 수 있기를 바랍니다.
차 례
제1부 심사절차
제1장 형식심사 절차 / 13
1. 형식심사 일반 ····································································································· 13
2. 출원서에 대한 형식심사 ···················································································· 16
3. 명세서, 도면, 권리요구서 및 요약에 대한 형식심사 ················································ 19
4. 대리사무소의 위임 및 변경 ·················································································· 21
5. 서지사항의 변경 ································································································ 24
6. 명백한 실질적 흠결에 대한 심사 ········································································· 28
7. 생물재료 관련 출원 ······························································································ 32
8. 유전자원 관련 출원 ····························································································· 34
9. 출원의 취하 ······································································································· 34
10. 조기공개신청 ······································································································ 35
제2장 실질심사 절차 / 35
1. 실질심사의 진행 ·································································································· 35
2. 분할출원 ········································································································ 37
3. 우선권 주장 ········································································································ 41
4. 심사대상 문서 ·································································································· 50
5. 전면심사 ············································································································ 59
6. 의견제출통지서 ································································································· 63
7. 입 증 ·················································································································· 64
8. 정보제공에 대한 처리 ·························································································· 66
9. 면담 및 전화 인터뷰 ····························································································· 66
10. 보 정 ················································································································ 67
11. 거절결정 ········································································································· 80
12. 전리권의 수여, 소멸 및 포기 ············································································· 89
13. 홍콩으로의 특허 및 디자인 출원 ···································································· 91
14. 비밀유지출원 및 외국에 출원하는 경우의 비밀유지심사 ······································ 95
15. 기간 및 권리의 회복 ························································································· 97
제2부 등록 요건
제1장 전리권을 수여하지 않는 출원 / 103
1. 전리법 제2조 제2항―발명전리의 보호 객체 ························································· 103
2. 전리법 제5조 ····································································································· 106
3. 전리법 제25조 ···································································································· 108
제2장 신규성 / 122
1. 서 언 ················································································································ 122
2. 종래 기술 선정 등에 관한 심사 실무 규정 ·························································· 124
3. 확대된 선원(저촉출원) ························································································ 131
4. 신규성의 심사 ································································································ 132
5. 신규성을 상실하지 않은 공개 ··········································································· 138
제3장 진보성 / 142
1. 발명의 진보성에 대한 개념 ··············································································· 142
2. 발명의 진보성에 대한 심사 ················································································ 143
3. 진보성 판단 시 참고할 수 있는 예 ··································································· 151
4. 진보성 판단 시 고려하는 기타 요소 ·································································· 154
5. 진보성 판단 시 유의사항 ··················································································· 154
6. 고안의 진보성 ··································································································· 157
제4장 선출원 주의 / 159
1. 서 설 ··········································································································· 159
2. 판단 원칙 ······································································································ 160
3. 처리 방식 ······································································································· 165
제5장 실용성 / 168
1. 실용성의 개념 ································································································ 168
2. 실용성의 심사 ·································································································· 169
제6장 단일성 / 175
1. 단일성 ············································································································· 175
2. 분할출원 ·········································································································· 184
제7장 기재불비 / 185
1. 명세서 충분공개 요건(전리법 제26조 제3항) ························································· 185
2. 청구항이 명세서에 의해 뒷받침될 것(전리법 제26조 제4항 전문) ···························· 195
3. 청구항이 명확할 것(전리법 제26조 제4항 후문) ···················································· 202
4. 청구항이 간결할 것(전리법 제26조 제4항 후문) ···················································· 217
5. 청구항이 필수기술특징을 갖출 것(전리법실시세칙 제20조 제2항) ··························· 218
제8장 컴퓨터 프로그램 관련 발명에 대한 심사 / 221
1. 컴퓨터 프로그램 관련 발명의 정의 및 심사 기준 ·················································· 221
2. 컴퓨터 프로그램 자체에 대한 청구항의 심사 ························································ 222
3. 계산 방법 관련 발명에 대한 심사 ······································································ 225
4. 한자 코딩방법 관련 발명에 대한 심사 ································································ 228
5. 비즈니스 방법[Business Method(Model)]에 관한 발명에 대한 심사 ························· 229
6. “방법과 물건의 대응” 여부에 따른 심사 ····························································· 233
7. 기능모듈 구조의 물건 청구항의 보정에 대한 심사 ················································ 237
8. 명세서 충분 공개에 대한 심사 ··········································································· 240
제3부 화학발명에 대한 심사
제1장 화합물 발명에 대한 심사 / 245
1. 화합물 청구항의 명료성(전리법 제26조 제4항 후문) ·········································· 245
2. 화합물의 충분공개(전리법 제26조 제3항) ····························································· 252
3. 청구항의 명세서에 의한 뒷받침(전리법 제26조 제4항 전문) ···································· 260
4. 화합물의 신규성 ································································································ 264
5. 화합물의 진보성 ································································································ 267
6. 화합물의 단일성 ································································································ 273
7. 마쿠쉬 청구항의 보정 ······················································································· 277
8. 화합물 결정체 ·································································································· 280
9. 화합물 제조방법의 충분공개 ··············································································· 292
제2장 의약 발명에 대한 심사 / 292
1. 효과실험 데이터 ································································································· 292
2. 의약 조성물 발명의 심사 ··················································································· 297
3. 의약 용도발명의 심사 ····················································································· 304
제3장 생물 분야의 발명에 대한 심사 / 311
1. 보호 객체와 관련된 내용 ··················································································· 312
2. 청구항의 명확성 ································································································ 315
3. 청구항에서의 생물 서열이 명세서에 의해 뒷받침되는지 여부 ······························ 316
4. 생물 재료의 기탁 ···························································································· 319
5. 단백질 결정체 또는 구조에 관한 발명 ······························································ 325
6. 인간 배아 및 줄기세포(전리법 제5조 제1항) ························································· 327
7. 유전자원 출처공개(전리법 제26조 제5항) ·························································· 332
제4장 파라미터 특징을 포함하는 물질발명에 대한 심사 / 336
1. 명세서의 충분공개 요건 ···················································································· 336
2. 청구항의 명확성 요건 ······················································································· 339
3. 청구항이 명세서에 의해 뒷받침될 것 ···································································· 343
4. 신규성 ·············································································································· 344
5. 진보성 ··············································································································· 348
제5장 방법 특징을 포함하는 물질발명에 대한 심사 / 349
1. 신규성 및 진보성 판단 원칙 ··············································································· 349
2. 신규성 및 진보상 판단 예시 ·············································································· 350
제4부 중국 국내단계에 진입한 PCT 출원에 대한 특례
제1장 국내단계에 진입한 PCT 출원에 대한 형식심사 및 사무처리 / 357
1. 국제출원의 국내단계 진입 절차의 심사 ································································· 357
2. 국제출원의 효력 소멸 ························································································· 358
3. 국내단계 진입 시 제출한 출원 서류의 심사 ··························································· 359
4. 국제단계 보정서류의 번역문에 대한 심사 ····························································· 362
5. 기타 서류의 심사 ······························································································ 363
6. 국내공개 ············································································································ 370
제2장 국내단계에 진입한 PCT 출원에 대한 실질심사 / 370
1. 실질심사의 근거가 되는 서류 ············································································ 371
2. 실질심사에 대한 특수 규정 ··············································································· 374
3. 서면 의견 또는 특허성에 관한 국제예비심사보고서의 이용 ································· 375
4. 단일성 심사 ······································································································· 376
5. 번역문 착오의 정정에 대한 심사 ········································································ 377
제5부 실용신안출원의 형식심사
1. 서 언 ··············································································································· 383
2. 출원서류에 대한 심사 ························································································ 383
3. 요약에 대한 심사 ······························································································· 387
4. 권리요구서에 대한 심사 ····················································································· 387
5. 명세서에 대한 심사 ···························································································· 407
6. 도면에 대한 심사 ······························································································· 417
7. 전리법 제5조에 따른 심사 ················································································· 418
8. 전리법 제25조에 따른 심사 ·············································································· 419
9. 전리법 제9조에 따른 심사 ················································································ 420
10. 전리법 제20조 제1항에 따른 심사 ··································································· 421
11. 전리법 제22조 제2항에 따른 심사 ··································································· 422
12. 전리법 제22조 제4항에 따른 심사 ···································································· 425
13. 단일성에 대한 심사 ·························································································· 426
14. 분할출원에 대한 심사 ····················································································· 429
15. 대리사무소의 위임 등 ······················································································ 433
16. 우선권 주장 ····································································································· 434
17. 신규성을 상실하지 않는 공개에 대한 심사 ·························································· 434
18. 통지서에 대한 대응, 보정 및 전리법 제33조에 따른 심사 ··································· 435
19. 실용신안 형식심사의 종료 및 종료 이후의 심사 ·················································· 443
20. 전치심사 ········································································································· 444
21. 중국 국내단계로 진입한 PCT출원에 대한 심사 ··················································· 444
22. 실용신안 평가보고서 ························································································ 449
제6부 디자인에 대한 심사
1. 서 언 ················································································································ 455
2. 출원서에 대한 심사 ···························································································· 455
3. 디자인 도면 또는 사진에 대한 심사 ···································································· 460
4. 간단한 설명에 대한 심사 ····················································································· 493
5. 전리법 제5조 제1항에 따른 심사 ········································································ 498
6. 전리법 제31조 제2항에 따른 심사 ······································································ 503
7. 전리법 제33조에 따른 심사 ················································································· 548
8. 전리법 제25조 제1항 제6호에 따른 심사 ····························································· 566
9. 전리법 제2조 제4항에 따른 심사 ········································································· 571
10. 전리법 제9조에 따른 심사 ················································································ 585
11. 전리법 제23조 제1항에 따른 심사 ····································································· 588
12. 분할출원에 대한 심사 ······················································································· 592
13. 대리사항에 대한 심사 ······················································································· 596
14. 우선권에 대한 심사 ··························································································· 597
15. 신규성을 상실하지 않는 공개에 대한 심사 ·························································· 601
16. 보정서 및 답변서에 대한 심사 ··········································································· 601
17. 직권 보정 ········································································································ 607
18. 형식심사의 종결 ······························································································· 608
19. 통지서 및 결정서 ······························································································ 609
20. 전치심사 ·········································································································· 613
제7부 복심 및 무효심판청구
1. 총 칙 ················································································································ 617
2. 복심 및 무효심판 청구에 대한 방식심사 및 복심 청구에 대한 전치심사 ·············· 622
3. 합의심리 절차 ···································································································· 632
4. 복심청구의 합의심리 ··························································································· 638
5. 무효심판청구의 합의심리 ···················································································· 643
6. 구술심리에 관한 규정 ························································································· 657
7. 무효심판절차에서 증거문제에 관한 규정 ······························································ 665
8. 전리확인 및 전리침해 자문 사건에 대한 합의심리 ················································ 678
9. 복심 및 무효절차에서 디자인심리에 대한 규정 ····················································· 681
저 자 김 도 현
1998.3.~2007.2. 서울대학교 전기공학부(학사)
2009.11. 제46회 변리사시험 합격
2009.12.~2012.5. 특허법인 가산 근무
2012.6.~2012.12. 대만정치대학교/북경대학교 어학연수
2013.1.~ 2017.1. 중국 베이징 밍슈어 특허사무소(北京铭硕知识产权代理有限公司) 근무
2015.9.~2018.7. 중국인민대학교 법학과 지적재산권법 전공(석사)
2017.1.~현재 특허법인 C&S 근무
블로그: blog.naver.com/cnpatent
이메일: cnpatent@naver.com
기업에 소속된 특허팀 종사자이든 혹은 그 기업을 대리하는 대리인이든, 특허 실무자가 특정 국가의 특허 심사 규정이 어떠한지, 실제 심사 실무는 어떻게 이루어지는지에 대한 정보를 많이 보유할수록, 해당 국가에서 좋은 특허권을 얻어 낼 가능성은 높아질 것입니다.
중국에 진출하려는, 또는 중국에 이미 진출한 한국 기업이 중국에서 좋은 특허권을 획득하는 데 이 책이 조금이나마 기여할 수 있기를 바랍니다.
차 례
제1부 심사절차
제1장 형식심사 절차 / 13
1. 형식심사 일반 ····································································································· 13
2. 출원서에 대한 형식심사 ···················································································· 16
3. 명세서, 도면, 권리요구서 및 요약에 대한 형식심사 ················································ 19
4. 대리사무소의 위임 및 변경 ·················································································· 21
5. 서지사항의 변경 ································································································ 24
6. 명백한 실질적 흠결에 대한 심사 ········································································· 28
7. 생물재료 관련 출원 ······························································································ 32
8. 유전자원 관련 출원 ····························································································· 34
9. 출원의 취하 ······································································································· 34
10. 조기공개신청 ······································································································ 35
제2장 실질심사 절차 / 35
1. 실질심사의 진행 ·································································································· 35
2. 분할출원 ········································································································ 37
3. 우선권 주장 ········································································································ 41
4. 심사대상 문서 ·································································································· 50
5. 전면심사 ············································································································ 59
6. 의견제출통지서 ································································································· 63
7. 입 증 ·················································································································· 64
8. 정보제공에 대한 처리 ·························································································· 66
9. 면담 및 전화 인터뷰 ····························································································· 66
10. 보 정 ················································································································ 67
11. 거절결정 ········································································································· 80
12. 전리권의 수여, 소멸 및 포기 ············································································· 89
13. 홍콩으로의 특허 및 디자인 출원 ···································································· 91
14. 비밀유지출원 및 외국에 출원하는 경우의 비밀유지심사 ······································ 95
15. 기간 및 권리의 회복 ························································································· 97
제2부 등록 요건
제1장 전리권을 수여하지 않는 출원 / 103
1. 전리법 제2조 제2항―발명전리의 보호 객체 ························································· 103
2. 전리법 제5조 ····································································································· 106
3. 전리법 제25조 ···································································································· 108
제2장 신규성 / 122
1. 서 언 ················································································································ 122
2. 종래 기술 선정 등에 관한 심사 실무 규정 ·························································· 124
3. 확대된 선원(저촉출원) ························································································ 131
4. 신규성의 심사 ································································································ 132
5. 신규성을 상실하지 않은 공개 ··········································································· 138
제3장 진보성 / 142
1. 발명의 진보성에 대한 개념 ··············································································· 142
2. 발명의 진보성에 대한 심사 ················································································ 143
3. 진보성 판단 시 참고할 수 있는 예 ··································································· 151
4. 진보성 판단 시 고려하는 기타 요소 ·································································· 154
5. 진보성 판단 시 유의사항 ··················································································· 154
6. 고안의 진보성 ··································································································· 157
제4장 선출원 주의 / 159
1. 서 설 ··········································································································· 159
2. 판단 원칙 ······································································································ 160
3. 처리 방식 ······································································································· 165
제5장 실용성 / 168
1. 실용성의 개념 ································································································ 168
2. 실용성의 심사 ·································································································· 169
제6장 단일성 / 175
1. 단일성 ············································································································· 175
2. 분할출원 ·········································································································· 184
제7장 기재불비 / 185
1. 명세서 충분공개 요건(전리법 제26조 제3항) ························································· 185
2. 청구항이 명세서에 의해 뒷받침될 것(전리법 제26조 제4항 전문) ···························· 195
3. 청구항이 명확할 것(전리법 제26조 제4항 후문) ···················································· 202
4. 청구항이 간결할 것(전리법 제26조 제4항 후문) ···················································· 217
5. 청구항이 필수기술특징을 갖출 것(전리법실시세칙 제20조 제2항) ··························· 218
제8장 컴퓨터 프로그램 관련 발명에 대한 심사 / 221
1. 컴퓨터 프로그램 관련 발명의 정의 및 심사 기준 ·················································· 221
2. 컴퓨터 프로그램 자체에 대한 청구항의 심사 ························································ 222
3. 계산 방법 관련 발명에 대한 심사 ······································································ 225
4. 한자 코딩방법 관련 발명에 대한 심사 ································································ 228
5. 비즈니스 방법[Business Method(Model)]에 관한 발명에 대한 심사 ························· 229
6. “방법과 물건의 대응” 여부에 따른 심사 ····························································· 233
7. 기능모듈 구조의 물건 청구항의 보정에 대한 심사 ················································ 237
8. 명세서 충분 공개에 대한 심사 ··········································································· 240
제3부 화학발명에 대한 심사
제1장 화합물 발명에 대한 심사 / 245
1. 화합물 청구항의 명료성(전리법 제26조 제4항 후문) ·········································· 245
2. 화합물의 충분공개(전리법 제26조 제3항) ····························································· 252
3. 청구항의 명세서에 의한 뒷받침(전리법 제26조 제4항 전문) ···································· 260
4. 화합물의 신규성 ································································································ 264
5. 화합물의 진보성 ································································································ 267
6. 화합물의 단일성 ································································································ 273
7. 마쿠쉬 청구항의 보정 ······················································································· 277
8. 화합물 결정체 ·································································································· 280
9. 화합물 제조방법의 충분공개 ··············································································· 292
제2장 의약 발명에 대한 심사 / 292
1. 효과실험 데이터 ································································································· 292
2. 의약 조성물 발명의 심사 ··················································································· 297
3. 의약 용도발명의 심사 ····················································································· 304
제3장 생물 분야의 발명에 대한 심사 / 311
1. 보호 객체와 관련된 내용 ··················································································· 312
2. 청구항의 명확성 ································································································ 315
3. 청구항에서의 생물 서열이 명세서에 의해 뒷받침되는지 여부 ······························ 316
4. 생물 재료의 기탁 ···························································································· 319
5. 단백질 결정체 또는 구조에 관한 발명 ······························································ 325
6. 인간 배아 및 줄기세포(전리법 제5조 제1항) ························································· 327
7. 유전자원 출처공개(전리법 제26조 제5항) ·························································· 332
제4장 파라미터 특징을 포함하는 물질발명에 대한 심사 / 336
1. 명세서의 충분공개 요건 ···················································································· 336
2. 청구항의 명확성 요건 ······················································································· 339
3. 청구항이 명세서에 의해 뒷받침될 것 ···································································· 343
4. 신규성 ·············································································································· 344
5. 진보성 ··············································································································· 348
제5장 방법 특징을 포함하는 물질발명에 대한 심사 / 349
1. 신규성 및 진보성 판단 원칙 ··············································································· 349
2. 신규성 및 진보상 판단 예시 ·············································································· 350
제4부 중국 국내단계에 진입한 PCT 출원에 대한 특례
제1장 국내단계에 진입한 PCT 출원에 대한 형식심사 및 사무처리 / 357
1. 국제출원의 국내단계 진입 절차의 심사 ································································· 357
2. 국제출원의 효력 소멸 ························································································· 358
3. 국내단계 진입 시 제출한 출원 서류의 심사 ··························································· 359
4. 국제단계 보정서류의 번역문에 대한 심사 ····························································· 362
5. 기타 서류의 심사 ······························································································ 363
6. 국내공개 ············································································································ 370
제2장 국내단계에 진입한 PCT 출원에 대한 실질심사 / 370
1. 실질심사의 근거가 되는 서류 ············································································ 371
2. 실질심사에 대한 특수 규정 ··············································································· 374
3. 서면 의견 또는 특허성에 관한 국제예비심사보고서의 이용 ································· 375
4. 단일성 심사 ······································································································· 376
5. 번역문 착오의 정정에 대한 심사 ········································································ 377
제5부 실용신안출원의 형식심사
1. 서 언 ··············································································································· 383
2. 출원서류에 대한 심사 ························································································ 383
3. 요약에 대한 심사 ······························································································· 387
4. 권리요구서에 대한 심사 ····················································································· 387
5. 명세서에 대한 심사 ···························································································· 407
6. 도면에 대한 심사 ······························································································· 417
7. 전리법 제5조에 따른 심사 ················································································· 418
8. 전리법 제25조에 따른 심사 ·············································································· 419
9. 전리법 제9조에 따른 심사 ················································································ 420
10. 전리법 제20조 제1항에 따른 심사 ··································································· 421
11. 전리법 제22조 제2항에 따른 심사 ··································································· 422
12. 전리법 제22조 제4항에 따른 심사 ···································································· 425
13. 단일성에 대한 심사 ·························································································· 426
14. 분할출원에 대한 심사 ····················································································· 429
15. 대리사무소의 위임 등 ······················································································ 433
16. 우선권 주장 ····································································································· 434
17. 신규성을 상실하지 않는 공개에 대한 심사 ·························································· 434
18. 통지서에 대한 대응, 보정 및 전리법 제33조에 따른 심사 ··································· 435
19. 실용신안 형식심사의 종료 및 종료 이후의 심사 ·················································· 443
20. 전치심사 ········································································································· 444
21. 중국 국내단계로 진입한 PCT출원에 대한 심사 ··················································· 444
22. 실용신안 평가보고서 ························································································ 449
제6부 디자인에 대한 심사
1. 서 언 ················································································································ 455
2. 출원서에 대한 심사 ···························································································· 455
3. 디자인 도면 또는 사진에 대한 심사 ···································································· 460
4. 간단한 설명에 대한 심사 ····················································································· 493
5. 전리법 제5조 제1항에 따른 심사 ········································································ 498
6. 전리법 제31조 제2항에 따른 심사 ······································································ 503
7. 전리법 제33조에 따른 심사 ················································································· 548
8. 전리법 제25조 제1항 제6호에 따른 심사 ····························································· 566
9. 전리법 제2조 제4항에 따른 심사 ········································································· 571
10. 전리법 제9조에 따른 심사 ················································································ 585
11. 전리법 제23조 제1항에 따른 심사 ····································································· 588
12. 분할출원에 대한 심사 ······················································································· 592
13. 대리사항에 대한 심사 ······················································································· 596
14. 우선권에 대한 심사 ··························································································· 597
15. 신규성을 상실하지 않는 공개에 대한 심사 ·························································· 601
16. 보정서 및 답변서에 대한 심사 ··········································································· 601
17. 직권 보정 ········································································································ 607
18. 형식심사의 종결 ······························································································· 608
19. 통지서 및 결정서 ······························································································ 609
20. 전치심사 ·········································································································· 613
제7부 복심 및 무효심판청구
1. 총 칙 ················································································································ 617
2. 복심 및 무효심판 청구에 대한 방식심사 및 복심 청구에 대한 전치심사 ·············· 622
3. 합의심리 절차 ···································································································· 632
4. 복심청구의 합의심리 ··························································································· 638
5. 무효심판청구의 합의심리 ···················································································· 643
6. 구술심리에 관한 규정 ························································································· 657
7. 무효심판절차에서 증거문제에 관한 규정 ······························································ 665
8. 전리확인 및 전리침해 자문 사건에 대한 합의심리 ················································ 678
9. 복심 및 무효절차에서 디자인심리에 대한 규정 ····················································· 681
저 자 김 도 현
1998.3.~2007.2. 서울대학교 전기공학부(학사)
2009.11. 제46회 변리사시험 합격
2009.12.~2012.5. 특허법인 가산 근무
2012.6.~2012.12. 대만정치대학교/북경대학교 어학연수
2013.1.~ 2017.1. 중국 베이징 밍슈어 특허사무소(北京铭硕知识产权代理有限公司) 근무
2015.9.~2018.7. 중국인민대학교 법학과 지적재산권법 전공(석사)
2017.1.~현재 특허법인 C&S 근무
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