중국특허실무(양장본 Hardcover)
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『중국특허실무』는 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 규범과 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.
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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
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
저자
저자
김도현
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??知???代理有限公司) 근무
2015.9.~2018.7. 중국인민대학교 법학과 지적재산권법 전공(석사)
2017.1.~현재 특허법인 C&S 근무
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??知???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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