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미국 특허법상 발명의 개념 - 자연법칙의 이용성을 다룬 최신 판례들이 주는 시사점
The definition of an invention in U.S. patent law - The implication of recent case law dealing with application of law of nature-

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Authors
박준석
Issue Date
2013-08
Publisher
한국산업재산권법학회
Citation
산업재산권 Vol.41, pp. 89-136
Keywords
사회과학발명의 개념자연법칙의 응용 혹은 이용미국 특허법컴퓨터프로그램 발명영업방법 발명미생물 발명인체 유전자 발명생명공학 발명the definition for inventionpatentable subject matterapplication or using of the law of natureUnited States patent lawcomputer program inventionbusiness methods inventionmicroorganism inventionhuman genes inventionbiotechnology invention
Abstract
To build up the most suitable definition for an invention in Korea patent law, we need to exactly understand the related trends in the United States. Its because the trends are playing now as the external pressure on our law and requiring us to respond wisely to it. Unlike German & Japanese law where an discovery basically cant be an invention and what many Korean scholars unconsciously depend on, the U.S. Patent Act expressly provides that 'discovery' will tentatively fall under the definition of an invention while U.S. case law has firmly built up an interpretational principle, the law of nature exception saying that the law of nature, natural phenomena, and abstract ideas should be excluded from the definition of an invention. In these three exceptional objects, not only the discovery but also the application of those things is required to get legal protection as an invention.Under the above legal frames, the case law by U.S. Supreme Court recognized the issued application for the category of computer programs and for the category of Microorganisms as an invention for the first time,respectively, in Diehr case in 1981 and in Chakrabarty case in 1980.However, some lower courts with Court of Appeals for the Federal Circuit as the center had distorted the real meaning of the above case law and had expanded the actual scope of an invention arbitrarily. For example, a weird variation of the standard of Diehr decision did allow any abstract idea could be an Business Method invention as long as such idea would useful, concrete and tangible and the two broad interpretation of Chakrabarty decision did make it possible that any organism including human DNA isolated or purified from natural presence could be treated as an invention even though the organism would not be different in its chemical composition from its natural presence.These extreme positions by lower courts were all struck down in the recent two cases by U.S. Supreme Court: Bilski decision in 2010 on BM application and Myriad decision in 2013 on human DNA. The recent Supreme Court decisions have been reaffirmed the prior standards held by Diehr and Chakrabarty decisions long ago. But the recent decisions intentionally avoided answering in detail the question, what could be thehuman productive behavior as the ultimate standard to be an invention or how far the application behavior toward laws of nature could be recognized when the above both behaviors are the key factor which turn the laws of nature into an invention.In Korea, there would be no problem in the category of process claim related to computer programs invention and BM invention because Korean court has maintained almost the same standard as that of Diehr case & Bilski case in U.S. for a long time even though U.S. itself go through twists and turns to arrive the standard. However, in the category of product claim related to biotechnology including microorganism and human DNA invention, we need to carefully check whether Korean current standard would be improperly lower than the standard presented by Chakrabarty case and Myriad case because it is unreasonable for Korea to keep lower hurdle of being an invention than US.
ISSN
1598-6055
Language
Korean
URI
https://hdl.handle.net/10371/91233
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College of Law/Law School (법과대학/대학원)Dept. of Law (법학과)Journal Papers (저널논문_법학과)
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