인공지능기술과 우리나라 특허법의 발명의 성립성

This article studies a potential conflict between artificial intelligence (AI) inventions and the Korean jurisprudence of patentability (or patent-eligibility). Article 2(1) of the Korean Patent Act defines an invention as “the highly advanced creation of technical ideas utilizing the law of nature.” Among others, Korean patent law determines patentability of an invention based on whether the invention “utiliz[es] the law of nature.” Abstract ideas and human mental steps are excluded from patentable subject matter as they do not “utiliz[e] the law of nature.”More specifically, when determining the patentability of the invention, the Korean Patent Office and the Korean courts focus on 1) whether the invention has a technical character, 2) whether the invention has specific and practical effects, and 3) whether the invention has technical means to bring about such effects. According to case law, an invention is held to be patentable when the invention physically transforms an object to another within or outside hardware. In addition, an invention is deemed patent-eligible when the invention specifically implements information processing by software to hardware or a computer. The Korean jurisprudence of patent-eligible subject matter seems to share some similarities with that of Japan, the United States, and Europe.With the development of AI technology, AI invention may be at odds with the Korean jurisprudence of patent-eligible subject matter in the following aspects. First, it is hard to explain the mechanism of AI, while the specification of an AI patent should specifically describe the invention in detail in order for the invention to be patentable. Second, AI is applied to non-technical fields such as linguistics, literature and economics, as well as technical fields such as science and engineering. Such a broad application of AI technology may be inconsistent with the jurisprudence of patent-eligibility, which requires that inventions have technical characteristics to be patent-eligible. Third, as AI evolves from weak AI to strong AI, Korean courts are likely to deny the patentability of AI invention on the ground that the invention merely applies an abstract idea or a human mental process to a general-purpose computer without an inventive concept.Fortunately, the potential conflict could be resolved by a flexible interpretation of the term “invention” under the Korean Patent Act. Without a revision of the Patent Act by the legislature, Korean courts and the Korean Patent Office should be allowed to broadly interpret the phrase “utilizing the law of nature” of the Patent Act, expanding the scope of the term “invention” to include AI technology.