실용신안에 의한 영업방법의 보호
Utility Model Protection of Business Methods

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서울대학교 법학연구소
법학, Vol.46 No2 pp.278-315
영업방법을 특허로 보호기술적 사상의 창작을 보호레히만(Reichman)의 책임이론영업방법발명(BM발명)
Patent protection of innovative business methods has a number of problems.
Much of them are being developed by individuals and SMEs. Extending
patentability would impose a major burden on them because they would have to
divert time and effort into making sure they are not infringing on business
method patents (BMPs), and seeking and enforcing them. It is necessary to
consider whether patenting business methods will work properly to produce
innovative technology, because overly broad protection will stifle competition and
result in a cost to the public. It should be assessed whether innovations are
given protections in proportion to the contribution to the society the invention
will make. It is important to limit the patent system to those fields where the
benefits will outweigh the disadvantages.
BMPs hinder follow-on innovations because they are based on the property
right rules. Most of software innovations are incremental and thus, they cannot
satisfy the criteria of inventive step.
Under the liability regime, follow-on innovators can use the first comer's
innovation only if they are willing to pay a certain royalty to the first comer.
This lowers transaction costs and reduces undesirable social behaviour such as
free riding appropriation. Utility models that are modified to be based on liability
regimes could solve the critical issue of the relationship between the first comer
and second comers in sequential innovation, i.e. encouraging innovation without
impeding follow-on innovations. In addition, it is desirable to introduce
substantial examination only for novelty (not for inventive step) in order to
minimize the negative effect of an unexamined utility model right, and abandon
inventive step requirements because most of software innovations are incremental.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 46, Number 1/4 (2005)
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