@article{ART001069042},
author={ 임호 },
title={The Necessity to Restrict the Claim Scope in Applying the Doctrine of Equivalents},
journal={HUFS Law Review},
issn={1226-0886},
year={2007},
number={26},
pages={255-285},
doi={10.17257/hufslr.2007..26.255},
url={http://dx.doi.org/10.17257/hufslr.2007..26.255}

TY - JOUR
AU - 임호
TI - The Necessity to Restrict the Claim Scope in Applying the Doctrine of Equivalents
T2 - HUFS Law Review
PY - 2007
VL -
IS - 26
PB - The HUFS Law Research Institute
SP - 255-285
SN - 1226-0886
AB - In applying the Doctrine of Equivalents(DOE) in patent infringement cases, the Supreme Court of Korea use the Combined Approach, which means that in deciding the equivalent claim scope it aggregates the 3Step Test' elements and the Substantial Difference Test' elements together. However there are critics stating that in actual case the 3step test does not give the clear standard to define the scope of DOE. Also there is dissenting opinion in deciding the elements of the Substantial Difference Test. Moreover the Court takes the Invention 'As A Whole Approach,' which grants the patentee the broader claim scope than the Element-by-Element Approach. As a result the Court allows more wider scope of the DOE than US Supreme Court. Meanwhile The Japan's Supreme Court also tries to narrow down the scope of DOE by taking the Essential Element Test, which does not allow the application of DOE beyond the literal scope of the essential element of the claim. The widest claim scope allowed by the Korean Supreme Court may destroy the public's belief that after studying the claim language they can design around it or improve upon it without the fear of infringement suit from the patentee. To narrow down the DOE's claim scope, it is recommendable for the Court to change its test to the Element-by-Element Approach from the Invention as a Whole Approach. Also it is desirable to revise the Korea Patent Act and to introduce the patent reissue system. The most important thing is to reform the patent system with the help of empirical science such as economics. If we calculate the economic benefits & disadvantages coming from the application of DOE, then we can establish the rule determine the proper scope of DOE. This scientifical patent rule will surely grant the certain protection to the inventor and the legal stability to the public at the same time.
KW - Doctrine of Equivalents, Claim scope, Infringement, Substantial Difference, As A Whole Approach, Essential Element, Element-by-Element
DO - 10.17257/hufslr.2007..26.255
UR - http://dx.doi.org/10.17257/hufslr.2007..26.255
ER -

임호 . 2007, “The Necessity to Restrict the Claim Scope in Applying the Doctrine of Equivalents”, HUFS Law Review, no. 26, pp. 255-285. Available from: doi:10.17257/hufslr.2007..26.255

임호 “The Necessity to Restrict the Claim Scope in Applying the Doctrine of Equivalents” HUFS Law Review 26 pp. 255-285 (2007): 255.

임호 . The Necessity to Restrict the Claim Scope in Applying the Doctrine of Equivalents HUFS Law Review [Internet]. 2007; 26: 255-285. Available from: doi:10.17257/hufslr.2007..26.255

임호 . “The Necessity to Restrict the Claim Scope in Applying the Doctrine of Equivalents” HUFS Law Review no.26 (2007): 255-285. doi: 10.17257/hufslr.2007..26.255