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Even though the U.S. Supreme Court has acknowledged the subject matter very widely, it has rejected the patentability against the law of nature, physical phenomenon, and abstract idea. The decision whether an invention can be patentable is based on the preemption concept and inventiveness concept. Thus, the judgment of patentability is made by preemption and inventiveness test. In addition, these tests are made not respectively but complementary. In other words, the judgment is composed of two step test: first step is judging whether an invention is not patentable; second step is judging whether an invention is addicted to the inventiveness. However, this two step test has some problems. One of the problems is what is unpatentable subject matter, and another is what degree of inventiveness is required for passing patentability. Due to the features of the problems, the standard for this judgment cannot be decided uniformly. But, it is necessary to set out the direction of the boundary and the degree because new forms of invention is developed continuously. The main direction should be the balance between the incentive of patent owner and public interests, that is, the purpose of patent law, and the judgment has to be examined as a whole. Moreover, considering the statute, the history of legislation, the protection for the existing patent, and the features of patentability, the scope of subject matter has not to be interpreted too broadly. Next, with regard to what degree of the inventiveness is needed, human inventive faculty makes sufficient difference from the unpatentable matter and the difference should not trivial, routine, well-understood, conventional in order to be meaningful limitations. In addition, since the judgment for the inventiveness test can be considered in other patent requirements, it has not to be interpreted strictly. The recent lawsuits concerning human embryonic stem cells and computer program should be handled by two step test which is composed of preemption and inventiveness concept like all others. Since the two matters may be included in the unpatentable matters, the judgements would be focused on the inventiveness. Of course, although there are many needs to limit the patentable scope, the judgment of the patentability of them must follow the above principle, and this is the best way to solve the social imbalance.

목차

I. 서언
 II. 특허적격의 판단
  1. 미국 특허법상 불특허 대상
  2. 특허적격의 판단 방법
 Ⅲ. 구체적 판단의 검토
  1. 인간배아줄기세포의 특허적격 판단
  2. 컴퓨터 프로그램의 특허적격 판단
 Ⅳ. 결어
 참고문헌
 

키워드

특허적격 특허대상 선점 테스트 독창성 테스트 배아줄기세포 컴퓨터 프로그램 patentability subject matter preemption inventiveness test embryonic stem cell computer program.

저자

• 김창화 [ Kim, Chang-Hwa | 단국대학교 대학원 IT법학융합과정 연구전담교수, 법학박사(S.J.D.). ]

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