S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) Journal of Korean Law Journal of Korean Law Volume 04 Number 1/2 (2004)
Business Method Patents in Korea
- Koo, Dae Hwan
- Issue Date
- BK 21 law
- Journal of Korean Law, Vol.4 No.1, pp. 73-97
- E-commerce has been affecting, and has been affected, by Intellectual Property. Rapid growth of ecommerce has introduced BMPs. Methods of doing business using the Internet were regarded as a process. In the US, the test for the patentability of a business method is whether its subject-matter has practical utility that provides a useful, concrete and tangible result. In the EPO, the patentability of a business method depends on whether its subject-matter has a technical character. In Korea, it is whether its subject-matter is a technological idea using laws of nature.
The fundamental difference between the US and Korea is that in Korea to be patentable computerimplemented BMIs should be a technical idea using laws of nature, while in the US computer program related inventions are of the technological arts. In the Europe, BMIs should be of a technical character. In the US, the restrictions on patenting business methods are negligible. Practices in patenting BMIs are different between patent jurisdictions. Inconsistency is also found in each jurisdiction. There is an apparent discord between the statutory patentability in the EPC and the practice of the EPO. The IBM cases reversed the EPO Guidelines. Until the SSB court declared that the business method exception no longer exists, the patentability of business methods had long been denied unless embodied in some tangible form. However, methods of doing business (even without using software or hardware) can now be patentable.
In this state of affairs, before considering whether following the US practice in patenting BMs, or persuading the US to follow Korea or the EPO practice, or coordinating with one another to harmonize the patentability of BMs, it is reasonable to examine whether or not the existing legal regimes are appropriate for protection of software innovations. This is because the main problems in software patenting (i.e. impeding follow-on innovation, establishing entry barrier) might be originated from the very nature of the existing legal regimes.