영업방법 발명 등 컴퓨터프로그램 관련 발명의 특허법적 보호에 관한 비교법적 고찰

• 영문명: A Comparative Study on Patent Protection for Computer Software-related Inventions including Business Method
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 朴俊錫(Jun-Seok Park)
• 간행물 정보: 『비교사법』比較私法 제16권 제3호, 453~509쪽, 전체 57쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.09.30

영문 초록

The scope of patentable subject matter in computer software including business method is limited by the consideration that the result will be harmful to the purpose of the patent act if there would be a monopoly on the law of nature, mathematical formula, and abstract ideas. Under this consideration, US Supreme Court have clarified through its decisions in Benson, Flook, and Diehr that the software’s algorithm itself isn’t the patentable subject matter and the patent could be given only if there is substantial practical application of the software. However, US Supreme Court’s decisions have shown a subtle discrepancy in the detailed standard for the application. Since its decision in State Street Bank, US CAFC had taken a pro-patent standard in which any business method with a useful, tangible and concrete result could be patented. This extremely pro-patent test was struck down by the CAFC itself in recent Bilski case where the new machine-or-transformation test governed. On the other hand, the standard set up allegedly by the Diehr decision, in which a software patent shall be given only if the software should transform a particular article into a different state or thing, seems to be inappropriate for the newest and future technology such as electronic signals. As a result, the most probable standard in determining whether a software-related invent is patent-eligible as a process patent or not would be the test set up by the Benson decision. Under Benson test, whether or not software transforms a particular article into a different state or thing will be just a most important factor, not the sole factor in the determination. EPO’s decisions with its criterion for technical character of software have built a higher standard to get a patent than so-called useful, tangible and concrete result test of US. Japan’s interpretation of its own Patent Act requiring the application of the law of nature also seems to be a higher test, as does the Korean court’s interpretation of Korean Patent Act. As compared with the probable result of US Supreme Court’s ruling in Bilski case, the Korean court’s interpretation happens to be pertinent to the matter.

목차

Ⅰ. 서설

Ⅱ. 컴퓨터프로그램 관련발명의 보호에 대한 외국 사례

Ⅲ. 우리나라의 학설과 판례 등

Ⅳ. 영업방법(Business Method) 발명의 경우

Ⅴ. 결어

참고문헌

Abstract

키워드

Patent-Eligibility of Process Software Patent Business Method Patent Law of Nature Machine-or-Transformation Test