추상적 아이디어가 결합된 SW발명의 성립성 판단과 쟁점

Abstract

Unlike ordinary inventions, there are many cases where SW inventions are simply described as abstract ideas such as "means to process quickly" or "human artificial behavior" without specifically describing information processing means. If the requirements for the constitutionality of the invention are strictly determined just because the abstract idea is described in the claim, the constitutionality of the invention is not recognized, so the examination is closed without determination of the inventiveness which is the next examining step. From the applicant's point of view, although they want to be examined for how much the SW invention is improved or advanced than previous inventions, there is a problem to have no opportunity for determining the inventiveness since the examination is terminated by a strict determination of the constitutionality in SW inventions. In this regard, although the Supreme Court proposes the criteria for determining the constitutionality in the invention as a whole claim, even when determining as a whole claim, there is a problem that the constitutionality of the invention is not recognized just because the abstract idea is described in the claim rather than the role of the abstract idea. In order to solve such a problem, a process of flexibly determining the constitutionality of the invention and strictly examining the determination of the inventiveness is required. In particular, the European Patent Office considers it to be patentable if it does not fall under the exclusion of the patent subject defined in Article 52-2 of the European Patent Convention(EPC), and makes a strict determination at the next stage of examining the inventiveness. Like the European Patent Office, we need a harmonization plan between the flexible determination of the constitutionality of inventions and the strict determination of the inventiveness. In principle, the harmony between the two is determined based on the entire claim, and if there is a technical idea among the topics of the SW invention described in the claim, it is recognized that there is a constitutionality of inventions as the entire claim combined with the abstract idea. Next, in the determination of the inventiveness, the examination process is needed that, when abstract ideas are combined with technical ideas and information processing means by the SW are specifically performed or are determined to have a 'better effect' based on specific properties and characteristics, the inventiveness is recognized.