인공지능 등 비자연인의 특허권 주체 인정을 위한 인격 부여 가능성에 관한 연구

The arrival of the 4th Industrial Revolution raised a broad range of intellectual property right issues, with one of them being whether artificial intelligence can own a patent right. The current version of the Patent Act, which treats patent right as a form of property right, leaves no room for the possibility of recognizing the patent ownership of artificial intelligence. Leading theories on property rights also clearly maintain that only a human being can be an owner of a property right. However, according to these theories, a non-human can be recognized as a person by employing a legal fiction that it has personality. This approach has been extensively employed and discussed on various occasions, such as: the “Salamander Case,” a Korean civil law case that raised the question of whether an animal can own a right; the various cases that involve the legal personality of incorporated entities; and the discussions about “electronic persons” in the European Union. However, this approach is not readily applicable to the subject matter of this paper, as it presupposes the existence of a human being. Therefore, this paper concludes that a legislative solution will be required to recognize the capacity of artificial intelligence to own patent rights. However, such legislation would have to consider a number of critical limitations. Specifically, this paper looks into limitations provided by the Constitution, limitations caused by the technological evolution itself, and fundamental limitations regarding patent ownership of humans. Through these discussions, this paper lays down some points of debate that need to be considered when handling the issue of patent ownership of artificial intelligence.