직무상 인공지능 발명에 대한 사용자주의 도입에 관한 시론적 연구

Intellectual Property Offices in Korea and around the world do not protect artificial intelligence inventions by limiting inventors to natural persons. In view of the purpose of the Patent Act to contribute to industrial development by protecting inventions and promoting their use, it is inappropriate not to protect artificial intelligence inventions on the grounds that they do not satisfy the subjective requirements even though the objective requirements of the inventions are satisfied. In particular, considering that a legal personality is not required for an act of invention that is a factual act and the artificial intelligence that actually created the technical idea has the inventorship status, it is reasonable to give inventor qualifications for artificial intelligence. According to Article 33 Paragraph 1 of the Patent Act, the right to obtain a patent belongs to the inventor, and even if an artificial intelligence is granted as inventor, since rights cannot be attributed to artificial intelligence without legal personality, it becomes as problem how to transfer the right to be patented to a natural or legal person with legal personality. However, the form of artificial intelligence invention was invented by artificial intelligence under human instruction or management, so it has a similar aspect to the employee invention stipulated in the Invention Promotion Act in appearance. Employee invention is a policy that grants certain rights to job inventions to employers, although inventions made by employees within the scope of work belong to the employees. Even if the AI is an inventor, it is possible to apply the principle of employee invention, but reservation succession rules under Articles 10 (1) and 13 of the Invention Promotion Act and compensation rules under Articles 15 and 16 of the Invention Promotion Act are premised on natural persons by their nature and are difficult to apply directly to the artificial intelligence invention. However, since these regulations are necessary requirements because Korea's employee invention legal system adopts the principle of inventors, the right to obtain a patent without a separate contract or obligation to the user for the artificial intelligence invention is fundamentally attributed to the user. It is necessary to review legislation to the effect of the principle of employer, which does not necessarily require compensation for contract capabilities and artificial intelligence. In this legislation, a new definition rule that defines occupational artificial intelligence inventions should be newly established, and the existing employeel inventions and occupational artificial intelligence inventions should be discussed separately. Inventions substantially contributed by employees can be protected using the existing job invention legislation, thereby maintaining the advantage of the inventor's principle of protection of employees, and by separately stipulating artificial intelligence inventions under the principle of employer, the right to obtain patents for artificial intelligence inventions can be naturally inherited by users, and thus, faithful protection of artificial intelligence inventions will be possible. In conclusion, it is necessary to prepare a logical foundation for protection of artificial intelligence creations through discussion on the protection of artificial intelligence inventions such as this legislation, and furthermore lay the foundation for the use of artificial intelligence.