Earticle

초록

영어

In recent we have been concerned about Business Method Patent, that is, whether computer software is proper subject matter for patentability. In the United States, the recent State Street Bank v. Signature Financial decision appears to have put an end to the question. The decision repudiated two judicially created patent subject matter exceptions: the mathematical algorithm and the business method exceptions. Perhaps the court recognized the problem it had created where the manner in which a software invention is claimed determined patentability. Perhaps the court finally realized the distinction between mathematical formula and mathematical algorithms that had been lost on the court in previous decisions. Any computerrelated process or machine is patentable subject matter so long as it is applied to a practical purpose. Any invention, whether or not it contains a mathematical algorithm, could not represent a mere abstract idea if the invention had a practical and useful application. The question of whether a claim encompasses statutory subject matter should not focus on which of the four categories of subject matter a claim is directed to -process, machine, manufacture, or composition of matter -but rather on the essential characteristics of the subject matter, in particular, its practical utility. The European community has been dealing with the problem of software patentability for as long as the United States. In the early eighties, a new European patent act was passed that specifically rejected patent coverage for software. But in 1999, the EPO Board of Appeals ruled that claims drawn to software, either on a medium or by itself might be allowed by the EPO so long as the claimed invention has a "technical effect." They have apparently recognized the value and need of software patents to protect the industry against infringement. The Japanese Patent Law does not explicitly exclude computer programs from statutory subject matter. In order to be statutory subject matter, a computer program must show that it uses the physical laws of nature and is not simply the expression of an idea or of a logical process. The standard requires a close connection between software and the hardware of a computer. In practice, however, the Japanese Patent Office has liberally accepted all kinds of computer-related inventions, along the same lines as the U.S. Patent Office. Simply stated, any invention that is claimed in the form of a process, a machine, a composition of matter, or an article of manufacture is patentable so long as it has practical utility. Software is to be treated no differently than any other claimed invention. Perhaps now we can move on the other problems in Business Method Patent. The actually issues of software patentability such as considerations of non-obviousness.

목차

I. 序論
 II. 비즈니스 方法特許의 意義
  1. IT관련 새로운 비즈니스 方法發明
  2. 소프트웨어 關聯發明
 III.  美國에서의 비즈니스 方法特許
  1. 判例의 變遷
  2. 審査가이드라인
  3. 特許法의 改正-先使用者優先權
  4. 美國의 立場에 대한 評價
 IV. EU에서의 비즈니스 方法特許
  1. 유럽 特許條約
  2. 비즈니스 方法發明의 取扱
 V. 日本에서의 비즈니스 方法特許
  1. 基本立場
  2. 비즈니스 方法特許의 要件
 VI. 우리나라에서의 비즈니스 方法特許
  1. 基本立場
  2. 特許適格性 
  3. 新規性ㆍ進步性
 VII. 結論
 參考文獻
 ABSTRACT

키워드

저자

• 孫永和 [ 손영화 | 明知大學校 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  산업재산권 [Journal of Industrial Property]

• 간기

  계간

• pISSN

  1598-6055

• eISSN

  2733-9483

• 수록기간

  1995~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 367 DDC 346