Business Model Patents [Lee & Associate]

1) Establishment of invention
With respect to a BM application, the standards for determining the establishment of the invention are the same as those for other general patent applications. First, a BM in itself could not be deemed an invention. In order for a BM to qualify as a creation of technical ideas utilizing the law of nature under Article 2 of the Patent Law, it has to be for an implementation of said business method which can be executed on a computer. Consequently, in the claims, the invention should be stated in a manner that describes how a business method is implemented by computer and telecommunication technology with computers and the like as the subjects. Even if the detailed description of the invention contains explanations of the implementation technology thereof, if the claims merely describe a business method without mentioning the computer and telecommunication technology involved therein, the application would warrant a refusal by failure to establish an invention. A BM patent is generally based on computer technology. It usually comprises steps containing mathematical calculations. If an application does not limit the applicable areas within the industry, it is deemed to be a mere mathematical algorithm, which would warrant a refusal. For example, there was an application which merely described the calculation process for asset management in its claims without any limitation as to how the results of said calculations are used as a specific means for achieving the specific objectives in the industry. The application was deemed to be a mere mathematical algorithm and hence it was rejected.

2) Novelty
Determination of novelty depends upon whether there are actual differences between the invention as described in the claims and the techniques of prior arts and those described in the literature given as reference. A BM is a combination of particulars of a business method and computer technology. Even if the particulars of the business method are the same, if there are differences in the particulars of the construct of implementation technology, then the novelty therein is recognized. However, if the difference is one in mere expression with the same construct, or if the invention described in the claims is expressed only as a generic concept of higher level and the technology in the reference as a specific concept of lower level, the I invention would be deemed wanting novelty. For example, there was an application, which involved a means of displaying transaction information to customers. The invention was described in the claims as a display device and the technology in the reference, given as a flat display. In that case, according to the rules as mentioned above, the novelty of the invention was not recognized.

3) Inventive steps
The examination standards as published by the Korean Intellectual Property Office are as follows: In the case of a BM which is a type of combination of particulars of a business method and computer technology, if the business method is already being carried out in the conventional market, and if the technology which implements said business method on computers is a general automation technology, it could be said that the inventive step is lacking in such a case. On the other hand, if the technology which implements a conventional business method on computers rises to the level at which it is more than general automation technology in view of the technical level at the time of the filing of the application, then its inventive step cannot be negated. Of course, if a new business method is implemented by a new implementation technology, then the inventive step obviously exists in such a case.