스마트기기에 탑재 가능한 애플리케이션 관련 발명의 특허권법상 보호 방안에 관한 연구

This paper discusses a scheme for protecting inventions, distributed in the form of applications that can be installed on smart devices (hereinafter referred to as “app-related inventions”), based on intellectual property laws and the protection limits of the current copyright law and patent law. App-related inventions can be treated in the same manner as software-related inventions in the current patent law, and can be granted patents if they fulfill predetermined requirements. However, since in the case of app-related inventions, the developer of an application and the manufacturer of a smart device are not normally subject to a subordinate-superior or supervisory relationship and independently perform their respective practices without any economic connection therebetween, a problem arises in that the app-related inventions cannot be substantially protected by the current laws even when they have been patented. That is, in the case of an app-related invention in which one or more software elements are combined with one or more hardware elements, a contradiction may occur in that the practice of a patented invention by a single agent is recognized as an infringement but the practice of the patented invention by a plurality of agents is not recognized as an infringement. This paper discusses a scheme for mitigating the all elements rule and using the mitigated rule and a scheme for introducing the provisions of induced infringement and contributory infringement to the patent law and calling upon the developer of software or an application to take responsibility for infringement in order to substantially protect app-related inventions that are practiced by a plurality of agents.