According to the revised Patent Act, which will become effective as of March 11, 2020, an act of online transmission of software that illegally utilizes a patented invention may constitute a patent infringement.
Under the current Patent Act, a software invention comprising a patented technology is entitled to patent protection if it claims software in a form that is stored in a recording medium, such as USB or CD. However, the current Patent Act does not provide an adequate patent protection for the transmission of software via an information and communication network without using a recording medium on the basis that such transmission of software is not an act of “working” defined in the Patent Act.
The March 11, 2020 revision has amended Article 2(3) of the Patent Act to define the term “working” in the case of a method invention as including an act of offering to use the method. Thus, under the revised Patent Act, online transmission of software comprising a patented technology will also be eligible for patent protection. In addition, the revis on has newly added Article 94(2) to the Patent Act, prescribing that if the working of a patented invention is an act of offering to use a method according to Article 2(3), the patent right shall only be exercised against an act of offering to use the method while knowing that the use of the method infringes on the patent right or an exclusive license there of. Thus, patent protection will only be available against an act of illegally distributing software while knowing that such an act infringes on the patent right or an exclusive license thereof.
Considering the increasing trend of distribution of software by online transmission, under the revised Patent Act, it would be desirable to claim a software invention in the form of a method, as well as a recording (storage) medium and/or a processing apparatus.