실용신안에 의한 영업방법의 보호

Abstract

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.