Executive Summary
An amendment to the Patent Act which stipulates an act of selling another party’s software registered as a patented method only via a data communication network as an act of infringement will be effective as of March 11, 2020.
According to the current law, with respect to a patented method such as software, an action that uses such patented method is only considered as the practice of the patent. Thus, it was difficult to seek protection for such patent because it was unclear whether an act of transferring software through a data communication network corresponded to the practice of a patent. So far, practice of a software patent is established only when the software is distributed offline while being stored in a computer readable medium like a USB.
However, considering how distribution environments of software have moved to an online basis, the amended Patent Act expressly states an act of online sale of software registered as a patented method is included in the practice of a patent by “stipulating that, with respect to a patented method, an act of offering to use the method as the practice of a patent” in order to avoid malicious acts of stealing software patents.
Furthermore, in order to prevent the software industry from declining, the amended Patent Act stipulates that “when the practice of a patent constitutes an act of offering to use a method, the effect of a patent right is only applied to an act of offering to use the method with a user being aware that the usage of the method infringes upon the patent right,” which allows a patent right to be exercisable only against an intentional act of online sale of software registered as a method invention.
Wonju Park, Commissioner of the KIPO, said that “this amendment will reasonably protect software, which is considered to be a core technology in the era of the 4th industrial revolution including artificial intelligence, analysis of big data, etc. and will help protect technologies developed by start-ups or medium- and small-companies.”