Software-Related Patents:
Korea
copyright 1996, 1999 Donald M. Cameron , Aird & Berlis
Contents
Statutes
The Korean Patent Act does not have sections dealing with computer software.
Regulations
In 1994 the Korea Industrial Property Office ("KIPO") published "standards of examination for computer-related inventions" (the "Standards"). The Standards of the KIPO are very similar to the pre-1993 Japanese standards. Unlike the post-1993 Japanese standards, the Korean Standards do not set forth particular criteria to determine whether or not the laws of nature have been used in a computer-related invention.
The Korean Patent Office has granted patents relating to operating systems of a
computer (including the process steps by which the operating system controls the computer
and manages its resources), methods for converting m-byte code in Hangul (the
Korean-language alphabet) into ks2-byte combined code, (The alphabetical letter
information being considered to be of a physical nature rather than a mathematical
algorithm), language information processing were the invention used hardware resources,
trade methods were hardware limitations are included in the claims, data base managing
systems, programming tools, and speech, image and character recognition systems.
The disclosure should contain a "corresponding diagram of the claims." Of a
patent application should include a function block diagram in which the means for
accomplishing particular functions are represented in detail. Instead, a flowchart in
which the particular steps are represented should be included.
The Guidelines are as follows:
1. In making a determination as to whether or not an invention meets the requirements for patentability, the following methods of determination are inappropriate. An argument is inappropriate to the effect that, in the case of an invention relating to a computer-applied technology where a computer is utilized as a partial means for establishing the objects of the invention, (a) the invention is patentable based on the reason that the invention is not able to (alone) carry out a basic function which is concrete and detailed, of the computer, or (b) the invention is unpatentable based on the ground that, after arbitrarily separating a claim of the invention into two portions such as a novel one and a known one, the novel portion would merely fall under the scope of the category of a computer software invention.
Therefore, in regard to computer-related inventions, a whole combination of the elements of the invention, more specifically, whether the combination as a whole can be constituted as a patentable subject matter and is properly based on utilizing the laws of nature, shall be an object to be examined.
2. In the event that technical ideas adopted in a computer-software invention, for example, a computer program, can be grasped from the procedural steps of the program, and a constant rule consisting of the procedural steps which are employed in order to solve given problems is properly based on the law of nature, such an invention comprising the technical ideas is considered as a patentable "method invention" utilizing the laws of nature.
3. In the event a computer is employed as a partial means for achieving the objects of an invention in a certain machine or system, it is possible to consider that each means for performing each function which is carried by the computer separately exists, notwithstanding the fact that the computer is operable by itself or by a computer program. The invention comprising all such means can be considered as an "apparatus invention".
4. An invention which claims a numerical expression or a mathematical algorithm, per se, can not meet the statutory requirements for patentability, because such an expression or an algorithm is merely a mathematical formula or directly denotes the laws of nature per se, and thus the invention is not considered to adequately "utilize" the laws of nature.
Under the current examination practices in Korea, a software related invention is
patentable if hardware or apparatus limitation are included in the claim.
Under current Korean practice, software alone is not patentable however if the software is
part of an otherwise patentable invention or if the software is combined with hardware and
the combination meets the requirements of patentability, a patent can be obtained on the
invention.
According to the Korean Manual of Patent Examination Procedures ("MPEP") of May
1991, a software-related invention is patentable if it utilizes the characteristic
features or structure of a hardware device as an integral part of the claimed invention.
Patentable software related claims may involve:
1) a controllable hardware device or a method which can effectively utilize such a hardware device; or
2) an apparatus utilizing computer functions as an integral part of the claimed invention. (1)
Case Law
There are no court cases directly on point regarding the patentability of computer
related invention.
On May 28, 1985 the Supreme Court of Korea in the Western Electric case dealt with a patent application concerning a conference call telephone system. The application claimed the microprocessor of the common controller having a data structure operated following the provisions of a flow chart. A minimal description of hardware was provided. The Supreme Court held that if the hardware employed in the invention is a computer having common purposes, an ordinary skilled worker could sufficiently understand the structure of the microprocessor even though there was no specific description of the structure of the computer in the specification.
Endnotes
1. Communication with Mrs. Daisy Wang and C.V. Chen, Lee and Li, Attorneys-At-Law, Taipei, Taiwan, Republic of China/
Other resources:
Kim & Kim International Patent and Law Office
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