소프트웨어 特許의 현황과 과제

• 영문명: Current Issues relating to Software Patents
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 丁相朝(Sang-Jo Jong)
• 간행물 정보: 『비교사법』比較私法 제14권 제3호(하), 1199~1256쪽, 전체 58쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.09.30

영문 초록

  For the past decade, there have been a lot of debates on the patentability of software inventions. Given the fact that mathematic algorithm or business methods were not patentable by themselves, there have been misunderstanding or criticism that software inventions are nothing more than mathematic algorithm or business methods and thus unpatentable. It is clear, however, that software inventions which produce technical effects or concrete and tangible results are different from mathematic algorithm or business methods themselves and thus patentable subject matter. In addition, the reality in software industry clearly indicates that investments in software development demand some incentives and legal protection such as patent rights. Another reality in software industry is patent protection sometimes hinders further software developments and future innovations. This paper tries and suggests some solutions to the negative impact of patent protection.
  One of solutions may be found in interpreting the requirement of non-obviousness. Statistics show that there are a lot more invalid or weak software patents than in other areas of technology. In addition to problems with patent examinations at the Patent Office, there are found substantial uncertainties of the non-obviousness test not only at the Patent Office but also at judicial courts. While the U.S. Supreme Courts reinterpreted the TSM test to strengthen the non-obviousness test, Korean courts simply did not turn to the TSM issues nor suggested any clear criteria.
  Problems with possible abuse of patent right in software industry may be tackled by several ways including denial of remedies against any alleged patent infringement, narrow interpretation of patent claims or limitations on doctrine of equivalents, application of antitrust law and so on. Unlike in the U.S. courts, patent right owners have not been allowed to raise the issue of invalidty in the Supreme Court dealing with patent infringements in Korea. Recently, however, Seoul High Court held that bringing a lawsuit based on an invalid patent constitutes an abuse of patent right and, thus, that remedies were not granted. Other than bringing a lawsuit based on an invalid patent, however, what else constitutes abuse of patent right? It seem also difficult to define what a patent troll is. Even if patent itself is valid and even if a patent troll is not involved, standard software such as mobile phone software which is standardized may have dominant market power and may give rise to anti-competitive business practices. In this sense, antitrust aspects of patent right becomes increasingly important in software industry.

목차

Ⅰ. 머리말
Ⅱ. 特許對象으로서의 소프트웨어 發明
Ⅲ. 特許 登錄要件: 진보성
Ⅳ. 特許權의 保護範圍 및 濫用規制
Ⅴ. 결론
【참고문헌】
[Abstract]

키워드

소프트웨어 특허 진보성 남용 금지청구권 Software Patent Non-Obviousness Abuse Injunction