유인이론의 관점에서 본 ‘통상의 기술자’의 기술수준

Because the inventive step is determined on the bases of the level of a PHOSITA’s skill and the level of a PHOSITA’s skill determines not only the inventive step of an invention but also the validity of a patent, deciding the inventive step without determining the level of a PHOSITA’s skill is not reasonable. According to the “inducement standard”, the level of a PHOSITA’s skill should be determined not on the level of researchers’ or inventors’ skill hired with the incentive to obtain patents but on the hypothetical state without the promise of patent protection. Because the level of a PHOSITA’s skill is different in technologies, it should be set by considering the characters of each technology and industry. While software industry is not so greatly dependent on the patent system, patent protection is essential to the pharmaceutical industry. It is argued that software technology could develop naturally without the patent system. However, it would be difficult to imagine that pharmaceutical technology could develop without the patent protection. Therefore, it would be reasonable to consider that while the level of a PHOSITA’s skill in software technology is slightly lower than the level of a software technician’s skill with the patent system, the level of a PHOSITA’s skill in pharmaceutical technology is greatly lower than that of inventors or specialists in the technology.