소프트웨어의 특허법적 보호 필요성

So many discussions have been made to find a proper answer for the question whether patent protection shall be allowed to software. Legal practitioners and scholars have regarded this issue critical and important because it may affect various aspects of international transactions. At the earlier stage, software was understood as copyrightable literary work written in a special language of source code or object code. Software developers were satisfied with this, expecting that software can be properly and sufficiently protected by copyright laws. However, it did not require many years until they realized the inefficiency and insufficiency of copyright protection for software. Copyright laws failed to protect the substantial technology in software but only the expressions of source code languages. It was later found that technology of software is consisted of substantial ideas, not merely expression. Accordingly, a new legal protection for software technology was urgent. U. S. Supreme Court changed its previous view that patent cannot be allowed to software(Gottschalk v. Benson). Many other countries followed this change and allowed patent for software, and so did Korea. Now many experts agree that a new kind of legal protection is required for software. In this regard, some new approach has been tried protection in accordance with Utility Model Act, and legislation of a new act which is different from the present Computer Program Protection Act(““CPPA””). However, these approach are neither appropriate nor practical, and any protections or solutions better than Patent Act are not suggested. On the other hand, some opinions are raised to stand against the patent protection for software. They assert that software patent will be misused by major companies because minor companies cannot afford the expenses of patent maintenance, application and litigation. But this possibility is imaginable but not present. Such expenses are not tremendous compared to the total expenses of any companies, and the litigation expenses do not cause any serious consideration in Korea. Moreover, statistics show that over 70% of mid-size companies hope for patent protection of software. Opponents raise various other grounds against patent software: that software has been protected by copyright laws having caused no problem so far; that patent protection may neglect to protect any inventors who are ignorant of existing software technology; that software patent may make serious damages to open-source software developers; and that software patent does not make any contribution to society after its expiration because its life is not so long. This paper shows why each of these assertions is neither effective nor appropriate in Korean society in practical aspects. This paper then moves to further research for any legal problems in patent protection of software under the present Patent Act, such as requirements for patent registration, interpretation of "use" of software patent, some considerations in the patent infringement litigation, and so-called “doubled protection” by CPPA and Patent Act for software. Finally, after reviewing other opinions for new ideas of compulsive license or license for ignorant inventors, this paper suggests a special arbitration system for software patent dispute for assisting the present patent protection under the Patent Act.