A Study on the Concept of ‘Invention’ and Patent Eligibility in Patent System : Focusing on the Concept of ‘Application of Law of Nature’
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- A Study on the Concept of ‘Invention’ and Patent Eligibility in Patent System : Focusing on the Concept of ‘Application of Law of Nature’
- 특허제도에서 발명의 개념 및 특허적격 판단 기준에 대한 고찰 :‘자연법칙의 이용’의 개념을 중심으로
- 산업재산권, v.46, no., pp.241 - 299
- 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.
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