소프트웨어특허의 형태에 따른 침해 연구

Software is basically protected in the framework of copyright law, but most countries including Korea have protected the software with patents after much discussion. Although the requirements for patent-eligibility of software in each country are somewhat different, ultimately they require linkage with hardware, and Korean patent practice is also similar. However, the patent-eligibility of software and its patent infringement are other issues, and even if the software can be the subject of patents, it is difficult to promote the development of related industries unless the actual protection is provided. So the change is needed in patent law. First of all, if the software is patented for a product invention in the form of a personal electronic device, it is necessary to restrict the provider's internet transmission. However, it is difficult to recognize direct infringement according to All Element Rule, and various methods can be suggested. However, it would be desirable to regulate as indirect infringement relatively free from such law. However, the current Korean patent law requires to be used only to patented invention and to be a product as a requirement for indirect infringement, which ultimately makes it difficult to discipline it. In this regard, the revision to expand the scope of indirect infringement to the level of neighboring countries is required. Also, the importance of the revision on the related matters needs to be emphasized even more because of the widespread use of portable electronic devices and the increase of user-oriented software. Next, there is difficulty in effective protection even if the software is patented for a method invention in a form associated with a personal electronic device. The legal scope of our method patents extends only to the act of using the invention, but in this case, the subject of use may be a general user, not a provider, and the use of such a person is not intended for business purposes. In order to effectively protect the software method patents, it is necessary to regulate the provider's behavior, that is, the provision of the internet, as a step before the individual's use. In this regard, an amendment to the patent law was proposed in 2018 that adds to the scope of the invention the method of subscribing to the use of the method. Through this, it can be said that the provider uploads the software as an implementation of the software method invention. However, it still remains the protection scope of the patent invention, another infringement requirement. Ultimately, it is difficult to recognize the infringement of method patents only by the above amendments because it is difficult to interpret the provider's transmission behavior as including the electronic device of the individual who is not continuous and inevitable, and in the end, it is difficult to see that all the components of the patent invention have been implemented. Therefore, in the case of software method patents, protection is required through the law of indirect infringement, which is relatively free from the law of component completion, in the same way as the patent of a product. Furthermore, attempting to revise only the software method invention is not well balanced. Therefore, the revision to expand the scope of indirect infringement to “means related to important components” without distinguishing the types of inventions is required in order to be able to be consistently infringement in 1974, it has reached the present time for more than 40 years without responding to environmental changes in technology development or implementation. In order to achieve the ultimate goal of industrial development, patent law require the effective protection of inventions, and in the process, patent law will need to meet new technologies and environments. This will help us to keep pace with international trends in Europe, the United States, and Japan, as well as our goal of dreaming of a software powerhouse.