공서양속에 반하는 발명에 대한 미국 특허제도에 관한 소고 - 유럽 특허제도와의 비교를 중심으로 -

Unlike other countries expressly stipulating the morality provision in their patent law, the US. does not have such provision in its patent law. However, it does have so-called the ‘Moral Utility Doctrine’, which was judicially established by the courts a long time ago and has been observed since then. The ‘Moral Utility Doctrine’, as a matter of law, serves as the morality provision appeared in other jurisdictions by putting limitations on patent protection for inventions contrary to public order or morality. The US Patent Office has also abided by such doctrine. Therefore, although there is no explicit provision, it can be said that the acquisition of a patent for inventions contrary to public order or morality is restricted under US patent law. While inventions contrary to public order or morality are treated as one of the exceptions to patentability under EU patent law, they are treated as inventions which do not meet the patentability requirements under US patent law. In addition, the scope of inventions contrary to public order or morality under US patent law is relatively very limited compared to that of their counterparts under EU patent law, which makes a significant difference in operation. This eventually leads to the difference in whether the acquisition of a patent for inventions contrary to public order or morality can be restricted or invalidated under public policy considerations. The US patent system for inventions contrary to public order or morality is very ineffective, especially as an institutional mechanism that restricts the patenting of biotechnological inventions causing social controversies and bioethics issues. As a result, it shows an essential difference from the EU patent system in that there is little room for public policy considerations in the patent examination for inventions in the biotechnology field.