특허의 진보성개념의 발전과 전개: 반공유의 비극과 효율성

In 2007, the U.S. Supreme Court stats that "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility" in KSR. The Court worried about the tragedy of anticommons, which makes unefficient use of resources due to too many exclusive rights, by the low level of barrier to patents under CAFC's TSM test which easily allows granting patents to inventors and easily recognizes patent infringement. The requirements for a patent are novelty, nonobviousness and utility in the U.S. The novelty requirement based on the natural rights perspective protects the public from allowing bad patents. The nonobviousness based on the Utilitarian perspective promotes the efficiency and welfare of the public. The U.S. court's view of novelty and nonobviousness deeply stems from the point mentioned above. Historically, the patent requirements evolved from the novelty to the nonobviousness. The case law shows this point:novelty, novelty plus, flash of genius, scrutinize-with-care (synergism), and nonobviousness. The low level of the requirements for patents of post Graham burdens the public under the pro-patent policy by the U.S.Government and the U.S. Courts then the KSR court comes back to the Graham. I argue that the U.S. courts use the nonobviousenss requirement to control the economic efficiency then, the KSR courts try to avoid the tragedy of anticommons by raising the level of obviousness. To do so, I analyze historical developments mentioned in several cases.