인공지능시대의 SW특허적격성에 대한 미국의 대응과 시사점–2019 Revised Patent Subject Matter Eligibility Guidance를 중심으로–

The USPTO has issued a guidance for new SW patent eligibility judgments in 2019, which explains that the new guidance is to clarify Alice case’s 2 step test and not the new Rulemaking. Nevertheless, we suspect that the scope of the SW patent eligibility has been broadened for the AI ​​and Bigdata industries. It is because that when the 2A test is split into two prongs, it is recognized as a SW patent eligibility if it is integrated into the practical application of Abstract Ideas, which can be recognized as a new step to bypass the invention concept required in step 2B. In this respect, we can read the USPTO’s willingness to broaden the scope of SW patent eligibility. This trend is expected to affect many countries including Korea, and it is expected that the impacts on the development of AI and Bigdata industry, which are the main technologies of the 4th Industrial Revolution, are expected to be greater. Nevertheless, considering that the 2019 Guidance does not deny Alice’s decision that the SW invention is process-invention in essence, the future study should focus on the criteria of SW patent eligibility related to the establishment of process-invention. Therefore, the Korean Intellectual Property Office and academia need to present the criteria of the SW invention eligibility for process-invention, regardless of the controversy over the invention of the medium or the invention of the machine.