초록 일부
Nowadays, the Internet is a part of our everyday life and the volume of electronic commerce on the Internet is ever increasing. Therefore, cyberspace is another meaningful space where human activitie...
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초록 전체
Nowadays, the Internet is a part of our everyday life and the volume of electronic commerce on the Internet is ever increasing. Therefore, cyberspace is another meaningful space where human activities need to be stably regulated by the laws. However, the current legal system is sometimes not quite suitable for cyberspace, because cyberspace is not a physical space where traditional legal
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* A thesis submitted to the committee of Graduate School, Chungnam National University in partial fulfillment of the requirements for the degree of Master of Law conferred in February 2001.
meanings are directly applicable and is not a geographic space where the traditional territoriality is observed, but a virtual community technologically formed by networked computers.
The international society has tried to adapt the legal system to this technological age of digital information, with emphasis on the intellectual properties. Major industrialized countries went through amendments of their copyright laws in accordance with the WIPO copyright treaty for effective protection of digital copyright. New preliminary draft conventions on jurisdiction and foreign judgements have been prepared in the framework of electronic trading environment. However, recent dispute settlement cases in cyberspace have not yet shown a consistency in jurisdictional decision.
In cyberspace, computer software is a tool for human activities as well as an object of the trading. The economic value of software became more appreciated than ever as the advent of the Internet.
The computer software has been protected by copyright traditionally. However, copyright law has its own limitation in protecting software, since it protects expression of the software not underlying idea. Therefore, in efforts to provide with practical protection for software copyright, courts held strong positions for software copyright and had a tendency to interpret the scope of protection somewhat over the extent of functional elements of software. Nowadays, functional elements such as user interfaces or structures of computer programs seem to be excluded from the reach of software copyright. This move was driven by new policies to promote software innovations by avoiding re-doing what others have already done but undisclosed under copyright.
Since ideas of software are not protected by copyright, patent right is sought to be an alternative for them. However, traditionally software without physicality has not been accepted positively as patentable subject matter, since ideas behind software are generally considered as mathematical algorithms that belong to the public domain.
After the famous State Street Bank case in 1998, software began to be recognized positively as patentable subject matter as long as it shows a technical effect and industrial applicability. Also, business methods framed on the Internet are no longer rejected solely for the reason of not being patentable subject matter. It is noted here that no new principles of patent law has been introduced but the old ill-conceived exception rule to software and business method inventions was given an opportunity to be reviewed and modified according to the basic principles of the patent law.
It is natural that the patent law should provide protection for ideas carrying technical effects and industrial applicability even though they are expressed in the form of software. However, since the definition of patentable invention is stipulated to use natural laws in the Korean patent law, it limits the flexibility in subsuming various forms of modern technologies that are software-oriented. Therefore, this definition may need to be revised.
'Media patent', which is also known as Beauregard-type claim patent, is a form of software patent but takes external appearance of the carrier, which is considered irrelevant to the true nature of software invention. Problems associated with this type of patent claim could be resolved if the software as such is accepted as patentable subject matter.
Software has options for protection either by copyright or patent right. Software products can be protected both by copyright and patent right, if it satisfies the patentability requirements as an invention.
Business method patent is considered typical of software patent in cyberspace. It is an international trend that business method patents are granted as information technology is more enhanced and the electronic commerce is activated. Provided the business method produces a technical effect, then it is prima facie patentable. Patentability of software, including business method invention, relies more on the examination results by the requirements of novelty and inventive step than that for the statutory subject matter.
As electronic human activity increases in cyberspace and software patents are commonly practiced in cyberspace, one of the problems is the cyberspace jurisdiction. Patent territoriality may need to be revised to effectively protect software patents in cyberspace. In so doing, jurisdictional decision shall secure predictability in cyberspace and our developmental stage of software industry should be carefully considered.
Conclusively, software invention must be protected under the patent law, even if there exist some practical difficulties, which must be overcome by separate strategy. Software as such should be taken as patentable subject matter. Yet, this should be accompanied by systematic efforts to enhance the examination capability and international cooperation toward software, including business method patents.
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