Earticle

초록

영어

There have been many researches to determine the conditions in which subject matters are patent eligible as we confront new subject matters while science and technology develops. But many of those researches have limits having confusion among concepts regarding patent eligible subject matter such as ‘invention’, ‘abstract idea’, ‘technological idea’ or ‘application of law of nature’, and lacking of trying to establish international standard for patent subject matter eligibility, which is one of reasons for increasing disputes of patents all around the world. Republic of Korea and Japan have the patent law identifying ‘invention’, which are regarded as patent eligible subject matter. It should qualify ‘application of law of nature’ and ‘technological concept’ simultaneously in order to be a patent eligible subject matter. But the condition of ‘application of law of nature’ alone is enough to determine patent eligibility for ‘technological concept’ is relatively undeterminable concept and also duplicating meaning to ‘application of law of nature’. European country such as germany or the ones which are members of European Patent Convention require ‘technological’ condition for patent eligibility. These countries also can use the ‘application of law of nature’ for determining patent eligibility rather than ‘technological’ conditions for the same reasons mentioned above. United States seem to require ‘use of law of nature’ as the least condition for patent eligibility even though there have been no explicit requirement for the patent eligibility in act nor in decisions of U. S. Supreme Courts. For the method claim which contain abstract idea, U.S. supreme court require the claim having something which could ‘transform’ the claim more than abstract idea itself. Although the condition of ‘transforming’ comprises element of ‘application of law of nature’, it does not mean merely limiting application to a certain field so as to claim ‘law of nature’ itself or abstract idea itself but require it limit the idea meaningfully and be major part of the claim. Requiring ‘application of law of nature’ does not conflict the decision of U.S. courts. Furthermore it has a ‘limiting effect’ which prevent courts from excessively granting patent for new subject matter and ‘effect of consideration of usefulness in real world’ and it has merit to make us determine patent eligibility objectively. For ‘invention’ and ‘patent eligibility’ is the basic concept in patent system and it reveals the intent of establish this system, we need to facilitate clear and predictable criterion of patent eligibility in order to prevent increasing dispute regarding patent eligibility.

목차

I. 서론
II. 주요국의 사례
1. 개관
2. 미국의 사례
3. 일본 및 한국의 사례
III. 특허적격 판단기준 고찰
1. 접근 방법
2. 발명과 특허적격 관련 개념에 대한 고찰
3. 특허적격 판단 기준
IV. 결론
참고문헌

키워드

발명 특허적격 자연법칙의 이용 기술적 사상 추상적 아이디 어 영업방법 생명공학 관련 대상. the definition of invention patent subject matter eligibility application of law of nature technological idea abstract idea business method living subject matter.

저자

• 정재권 [ Jung, Jae-Kwon | 기초과학연구원(IBS) 변호사. ]

참고문헌

발행기관

간행물