특허법 제41조 개정에 관한 소고

Security expanding its territory beyond the military applications to a wider range of areas. This expansion drives changes in the roles played by existing systems established based on military concepts. Article 41 of the Korean Patent Act provides for an exception to the application disclosure requirements. The exception allows for treating patent applications for inventions required for national defense as confidential information, so as to prevent the leakage of crucial national defense technologies. However, changes in the national security paradigm have undermined the role of Article 41. The provision is not linked with the relevant laws such as the Industrial Technology Protection Act, which reduces the effectiveness of the provision as a bulwark to prevent the overseas leakage of Korea’s key technologies. This purpose of this study is to contribute to a desirable revision of Article 41. To that end, this study explores the confidential patent frameworks in the United States and Japan, the two countries with close ties with Korea in terms of legal frameworks, policies, and international relationships, so as to identify the elements to be included in the revised provision and propose a guideline for desirable legislative efforts. Specifically, the scope of Article 41 needs to be expanded to include inventions across various areas beyond military weapon technologies. In addition, the relevant applications should be required to be filed first in Korea to ensure the effectiveness of the provision, and dual procedures need to be established to distinguish between inventions supported by government budget and the other inventions.