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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’

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Title
A Study on the Concept of ‘Invention’ and Patent Eligibility in Patent System : Focusing on the Concept of ‘Application of Law of Nature’
Alternative Title
특허제도에서 발명의 개념 및 특허적격 판단 기준에 대한 고찰 :‘자연법칙의 이용’의 개념을 중심으로
Author(s)
정재권
Publication Date
2015-04
Journal
산업재산권, v.46, no., pp.241 - 299
Publisher
한국산업재산권법학회
Abstract
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.
URI
http://pr.ibs.re.kr/handle/8788114/2732
ISSN
1598-6055
Appears in Collections:
HiddenCommunity > Journal Papers
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2015-04. 산업재산권-제46호-07-정재권-최종.pdfDownload

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