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Interpreting the Amendment of Medical Method Inventions: focus on New Matter Prohibition, Definiteness Requirement and Written Description Requirement

Kim, Suk-Joon 1

1한경대학교

Accredited

ABSTRACT

Medical methods for humans are not patentable in our patent practice. Therefore, if a patent application is filed against a wide range of animals including humans, it will be subject to a decision of rejection. By amending the patent application, the claim scope can be passively limited to 'animals except humans' so that the patent can be obtained. The process of obtaining such a patent is obviously accepted in the patent practice. This paper review whether the negative limitation amendment is legitimate within new matter prohibition and furthermore whether the negative limitation element is legitimate within definiteness requirement and written description requirement. Amendments to reduce the subjects of surgical methods and etc. is legitimate and claim to reduce the subjects of surgical methods and etc. is not indefinite and satisfies written description requirement legally. However, as the various examples and regulations of the countries mentioned above disprove, these amendments are still subject to dispute as interpreted. It is proposed to interpret it as amendments to clarify matters that are not clear in place of the negative limitation amendments. The concept between animal and human needs to be distinguished, and claims have the legal function, so the aspect of the legal concept must take precedence. This can be helpful in resolving the conflicts in relation to the negative limitation amendment and furthermore, I think that this interpretation more closely matches the ambiguous concept of animal.

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