SW발명의 특허적격성 판단에 관한 비교분석 - 미국⋅일본⋅EPO의 사례를 중심으로 -

Abstract

As to the program which is the target of the SW invention, it has been issued whether the program is the target to be protected in the Patent Law from the past in aspect which is an aggregation of instructions. commands applying a logic operation law, however at the present if satisfying the formality of the invention, the program is included in the target of the patent. In relation therewith the patent eligibility of the SW invention has been determined by the examination guideline related to the computer in Korea; by the judicial exception standard corresponding to the abstract idea, the l aw o f natu re, t he n atu ral p henomenon a nd t he g u idance d eciding the ju dicial e xception i n US; by t he e xamination g u ideline to t he i nvention r elated t o the SW in Japan; by the examination guideline and the EPC rule in EPO. Decisions and Judgements deciding the patent eligibility with respect to family patent applications of the SW invention submitted in US, EPO and Japan have been searched and analyzed. As results thereof there are many cases of rejecting the patent eligibility in US and Europe meanwhile there are many decisions and judgements of accepting the patent eligibility in Japan. Particularly among 3,500 decisions and judgements in US, cases of accepting the patent eligibility are 318 cases, 9.5%, and among the latest 74 cases filed in both US and Japan, cases of accepting the patent eligibility in both countries are 44 cases and cases of rejecting in US but accepting in Japan are 19 cases, and the opposite case was 0, and it has been known that there is a considerable difference. It has been known that is why the strict examination is made in US and Europe meanwhile it is widely accepted in Japan. It means that the Patent Eligibility Judgement Criterion in the SW Invention is different from country to country and it is decided to need the review for unifying examination guidelines in the international perspective.