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초록

영어

To build up the most suitable definition for an invention in Korea patent law, we need to exactly understand the related trends in the United States. It’s because the trends are playing now as the external pressure on our law and requiring us to respond wisely to it. Unlike German & Japanese law where an discovery basically can’t be an invention and what many Korean scholars unconsciously depend on, the U.S. Patent Act expressly provides that 'discovery' will tentatively fall under the definition of an invention while U.S. case law has firmly built up an interpretational principle, the law of nature exception saying that the law of nature, natural phenomena, and abstract ideas should be excluded from the definition of an invention. In these three exceptional objects, not only the discovery but also the application of those things is required to get legal protection as an invention. Under the above legal frames, the case law by U.S. Supreme Court recognized the issued application for the category of computer programs and for the category of Microorganisms as an invention for the first time,respectively, in Diehr case in 1981 and in Chakrabarty case in 1980. However, some lower courts with Court of Appeals for the Federal Circuit as the center had distorted the real meaning of the above case law and had expanded the actual scope of an invention arbitrarily. For example, a weird variation of the standard of Diehr decision did allow any abstract idea could be an Business Method invention as long as such idea would useful, concrete and tangible and the two broad interpretation of Chakrabarty decision did make it possible that any organism including human DNA isolated or purified from natural presence could be treated as an invention even though the organism would not be different in its chemical composition from its natural presence. These extreme positions by lower courts were all struck down in the recent two cases by U.S. Supreme Court: Bilski decision in 2010 on BM application and Myriad decision in 2013 on human DNA. The recent Supreme Court decisions have been reaffirmed the prior standards held by Diehr and Chakrabarty decisions long ago. But the recent decisions intentionally avoided answering in detail the question, what could be the human productive behavior as the ultimate standard to be an invention or how far the application behavior toward laws of nature could be recognized when the above both behaviors are the key factor which turn the laws of nature into an invention. In Korea, there would be no problem in the category of process claim related to computer programs invention and BM invention because Korean court has maintained almost the same standard as that of Diehr case & Bilski case in U.S. for a long time even though U.S. itself go through twists and turns to arrive the standard. However, in the category of product claim related to biotechnology including microorganism and human DNA invention, we need to carefully check whether Korean current standard would be improperly lower than the standard presented by Chakrabarty case and Myriad case because it is unreasonable for Korea to keep lower hurdle of being an invention than US.

목차

I. 서론
  1. 이 글의 근본목적
  2. 발명의 개념을 둘러싼 미국 논의를 고찰할 때 유의할 점
  3. 발명의 개념을 둘러싼 미국 논의를 고찰하는 것의 중요성
 Ⅱ. 방법의 발명으로 인정되기 위한 요건 다툼
  1. Bilski 판결 이전까지
  2. Bilski 판결
  3. Bilski 판결 이후의 동향 (Prometheus 판결)
 Ⅲ. 물건의 발명으로 인정되기 위한 요건 다툼
  1. Myriad 판결 이전까지
  2. Myriad 판결
 Ⅳ. 결론
 참고문헌
 

키워드

발명의 개념 자연법칙의 응용 혹은 이용 미국 특허법 컴퓨터프로그램 발명 영업방법 발명 미생물 발명 인체 유전자 발명 생명공학 발명 the definition for invention patentable subject matter application or using of the law of nature United States patent law computer program invention business methods invention microorganism invention human genes invention biotechnology invention

저자

• 박준석 [ Park, Jun-seok | 서울대학교 법과대학/법학대학원 부교수. ]

참고문헌

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