특허출원 관련 새로운 통지가 필요한 새로운 거절이유
A New Ground of Rejection Demanding a New Notice Regarding a Patent Application
Before issuing a reject determination, the Examiner shall present the Applicant with a ground of rejection and allow him to submit an opinion and/or an amendment. If the Examiner wants to reject based upon a new ground which is different from the old rejection notice, he shall present the Applicant with an additional new rejection notice. Such Examiner's notice requirement is being applied in the same way in the trial procedure. Normally the issue is whether the old rejection ground is the same as the new one. This paper divides into four categories where the new one is not the same as the old one.Firstly, if a different provision is being applied, the rejection would be a new one. For example, if the old rejection referred to Article 29(1) (novelty) of the Patent Act, the new rejection based on Article 29(2) (inventive step) is not the same as the old one.Secondly, if a different evidence is being used, the rejection would be a new one. Especially, in a case where a well-known (common general) knowledge is being added to an old evidence, the Korean Supreme Court decided that the new evidence (with the well-known knowledge) is the same as the old one. This paper argues fault of the decision based on several reasons.Thirdly, a rejection against a different invention (claim) is a new one. However, even though a claim number has been changed, if substance of the invention is identical the rejection is against the same invention.Fourthly, a rejection with a different thrust is a new one. Even though a rejection is based on the same provision using the same evidence on the same invention, if rationale of the new rejection is different from that of the old one, the new one demands a new notice. However, a new rejection which does not alter substance of the old rejection but just gives detailed explanation over the old one is not different from the old one.
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