Earticle

초록

영어

There are certain limitations on a jointly-owned patent right. Except for the case of working the patent invention by himself/herself, each joint owner is required to have the consent of the other joint-owners in order to shares transfer, establishment of a pledge right, exclusive license and non-exclusive license, registration of extension of term and adjudication request. In addition, where a trial is requested against any of the joint owners of a patent right, all the joint owners must be made defendants. These limitations are due to the fact that a patent right is a right to intangible property. The legal characteristics of a joint-ownership of a patent right has been understood as a type of partnership-ownership. However, according to the recent court’s ruling, it is possible for a joint owner of a patent right to claim for auction and segmentation. That is, joint-owners of a patent right such as universities and government-funded research institute who lack capacity to work the patent invention by themselves, may pursue claim for segmentation of their rights. This may result in a serious damage to the other joint-owners of the patent rights such as companies. If one of the joint-owners of a patent pursue claim for segmentation, that may result in disposition of the patent by auction, infringing upon other joint-owners’ rights to work that patent. Therefore, an amendment to the Patent Act is necessary in order to alleviate such potential damages to the other joint-owners and the Korean Intellectual Property Office(KIPO)’s proposal for an amendment to the Patent Act seems timely. Yet, there are certain concerns over the KIPO’s amendment proposal regarding the jointly-owned patent rights. In an attempt to solve the problem resulting from the recent court’s decision, the amendment could undermine the legal certainty or the rationality of the institution as a whole. That is, when a jointly-owned patent right is disposed by auction as in the court case, the other joint-owners can be sufficiently protected by setting an onerous statutory non-exclusive license instead of what the current amendment proposes. In addition to the statutory non-exclusive license, granting redemption of shares to the joint-owners can also prevent the unintended dispose of the jointly-owned patent rights. Therefore, these two alternatives should also be taken into consideration in the amendment.

목차

Ⅰ. 들어가며
 Ⅱ. 특허권 공유의 개념 및 법적 성격
  1. 민법상 공동소유의 개념과 관련 규정
  2. 공유특허의 개념
  3. 공유특허의 특성
  4. 공유특허권의 효력제한
  5. 공유특허권의 법적 성격
 Ⅲ. 공유특허의 분할에 대한 판례의 입장
  1. 특허권 공유물 분할 청구에 대한 판단 기존 법원의 판단
  2. 특허권 경매집행에 따른 공유분할에 대한 최근 대법원의 판단
  3. 판례에 따른 예상되는 부작용
 Ⅳ. 특허권 공유 관련 법개정안에 대한 문제점 및 제언
  1. 법개정안의 취지 및 내용
  2. 법개정안에 대해 예상되는 현상
  3. 대법원 판례의 입장 등을 고려한 개정안의 재고찰
 Ⅴ. 마치며
 참고문헌
 

키워드

저자

• 이헌희 [ Lee, Heon-Hui | 한국지식재산연구원 부연구위원 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  산업재산권 [Journal of Industrial Property]

• 간기

  계간

• pISSN

  1598-6055

• eISSN

  2733-9483

• 수록기간

  1995~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 367 DDC 346