컴퓨터프로그램 기술혁신의 효과적인 보호를 위한 제언

The characteristics of modern computer programs can be defined as follows: (1) they have become large and complex and thus, generally componentized to be easily approached by small teams; (2) they are exploited without any limitation of space or time; (3) they develop by themselves with inertia and network effect; (4) they are vulnerable to copying, and (5) they develop in a ‘sequential, cumulative and incremental’ way. Arguments against protecting computer programs by the patent law are the following: (1) Patents can be an impediment to sequential innovation processes of computer programs because patents are exclusive rights and could become holdouts. (2) Incremental innovations cannot satisfy the requirement of inventive step. (3) Software companies should constantly try to innovate because they cannot sell the same products to the customer to whom they have already sold their software products. (4) Because of network effects, first mover takes all. (5) They develop very fast and thus, the life of computer programs is very short compared to the patent life. On the other hand, arguments for protecting computer programs by the patent law are the following: (1) It is needed to provide lead-time incentives to software developers because the cost of copying computer programs is extremely small compared to that of developing them. (2) Because of the Internet which is called as the largest copying machine, once computer programs are loaded on the Internet, they can be copied without limitations. In conclusion, because of the characters of computer programs and patents, they cannot be protected by patents appropriately. In order to reflect the characters of computer programs, inventive step requirements should be lowered and exclusive natures of patents should be abolished. Utility models protect inventions having lower inventive step. However, they are proprietary rights and thus, exclusive. This problem resulting from exclusive characteristics of patents could be solved if the Royalty-registration System are introduced into the utility model law to protect computer program innovations.