인공지능을 활용하여 창출된 발명에 대한 바람직한 진보성 법리

Nowadays, with the development of artificial intelligence technology, many inventors are utilizing artificial intelligence to create their inventions. Due to the changed research environment, a change or at least an assessment of current inventive step (non-obviousness) jurisprudence is required. In other words, it is necessary to review whether current inventive step (non-obviousness) jurisprudence, which is summarized as “a person having ordinary skills in the art (PHOSITA)” and “obvious extraction”, is still well grounded in the era of artificial intelligence. Some have argued that wide utilization of artificial intelligence makes invention easier and increases the concern over too many patents. This paper analyzes academic discussions from Korea, China, Japan and the United States on new inventive step jurisprudence which should be applied to inventions created utilizing artificial intelligence (assuming weak artificial intelligence). The discussions are mainly divided into (1) the argument that the current concept of “PHOSITA” should be changed to the concept of “ordinary artificial intelligence”, and (2) the argument that the utilization of artificial intelligence should be described in the patent specification. Regarding the argument (1) above, this paper proclaims that a weak artificial intelligence cannot be a (co-) inventor and is only a more powerful tool. Thus, inventive step should be judged based on the standard of “smarter PHOSITA” who can utilize artificial intelligence. Regarding the above argument (2), because artificial intelligence may be a trade secret and it is practically difficult to impose a penalty on a specification that does not describe utilization of artificial intelligence, the paper disagrees with the argument. Although utilization of artificial intelligence will make invention easier and increase the number of patent applications, the threshold of inventive step will also be heightened due to the standard of “smarter PHOSITA”. As a result, the number of patent registrations is not likely to increase significantly. In conclusion, this paper believes that the basic framework of the current inventive step (non-obviousness) jurisprudence can be maintained in the era of weak artificial intelligence.