산업재산권 [Journal of Industrial Property]

간행물 정보
  • 자료유형
  • 발행기관
    한국지식재산학회 [Korea Intellectual Property Society]
  • ISSN
  • 간기
  • 수록기간
  • 등재여부
    KCI 등재
  • 주제분류
    사회과학 > 법학
  • 십진분류
    KDC 360 DDC 340
제30호 (10건)

특허침해 손해배상액 산정기준에 대한 최신 쟁점 - 미국판례와 미국특허법개정안을 중심으로 -


한국지식재산학회 산업재산권 제30호 2009.12 pp.1-38

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U.S. courts have interpreted 35 U.S.C. §284 as providing two means of calculating damages for patent infringement cases, which are known as lost profits and a reasonable royalty. To receive lost profits, a patent owner must show that "but for" the infringement, it would have made additional profits from the sale of its own products. A reasonable royalty commonly takes the hypothetical negotiation approach, which attempts to ascertain the royalty upon which the parties would have agreed had they successfully negotiated an agreement at the time of the first infringement. By designating a reasonable royalty as the floor below which damages shall not fall, the U.S. patent law guarantees at a minimum the royalty that the patentee would have received through an arms-length negotiation for the infringed patent, even if the patentee had never practiced the patented invention. Although the broad coverage of the award from lost profits can encompass the entire market value, the sale of "convoyed goods," the sale of "derivative goods," and the price erosion, etc. and thus resulting in high amount of damages award, patentees somehow prefer a reasonable royalty over lost profits and courts had never raised an issue about such preference by the plaintiffs. There are several reasons for such preference for a reasonable royalty over lost profits. Unlike lost profits, which require showing of "cause in fact," establishing that "but for" the infringement, he would have made additional profits, which then can be rebutted by the accused infringer, a reasonable royalty does not have such burden of proof. Yet in calculation of a reasonable royalty, courts have permitted incorporation of the entire market value rule, sale of "convoyed goods," discretionary increases, which had resulted in increase in the amount of award for a reasonable royalty. Also the most commonly used "hypothetical negotiation" approach requires several assumptions that inevitably raise the damages award. Such causes resulted in the regular appearances of outrageously high damages awards under the name of reasonable royalty, which are baseless and unpredictable in nature, thus fostering a litigation environment that allows the overly aggressive and jackpot minds of patent trolls to thrive. In response to the overcompensation problem in the reasonable royalty calculation, courts and Congress have been working together to fix the problem. Meanwhile, as many Korean corporations are currently defending in many patent infringement lawsuits in the U.S., many of which have been brought by patent trolls, this paper hopes to provide these corporations with up-to date information on patent litigation to better assess the risks that are attached to their pending or future lawsuits.



동일성유지권에 있어서 ‘동일성’ 개념에 대한 재고찰


한국지식재산학회 산업재산권 제30호 2009.12 pp.39-68

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The author shall have the right to preserve the integrity of content, form and title of his work. it is the right of integrity which is one of moral rights. or it is called as right to respect for the work. The right of integrity is the right to object to any distortion, mutilation or other modification of the work. In order for the right of integrity to be infringed, it is necessary to show that there has been modification and thereby derogatoriness of integrity of the original work. so the concept of 'integrity' in the right of integrity is important. by the way, the problem is that some people have other opinions about the concept of 'integrity'. the author is the person who created works which shall mean creative productions in which the ideas or emotion of human beings are expressed. therefore author's personality has been embodied in his work. and author receive protection for his moral or spiritual interests under copyright law. therefore I think that we must understand the right of integrity through the concept of the link between author and work. that is, we should discriminate between 'absolute integrity' focused on only modification of work(traditional concept of integrity) and 'relative integrity' focused on the relation of author and work, and consider the meaning of 'integrity' of the right of integrity as 'relative integrity'.



특허법에서의 ‘그 발명이 속하는 기술 분야에서 통상의 지식을 가진 자’에 대한 연구


한국지식재산학회 산업재산권 제30호 2009.12 pp.69-103

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The interpretation of 'ordinary skilled person in the art' in Korean patent articles 29 (inventive step) and 42 (description requirement) is important for defining requirement of specification of invention, scope of amendment allowance, and scope of what protection is sought. The meaning of 'ordinary skilled person in the art' between Korean patent article 29 and article 42 differs in point of 'field of technical art,' 'level of technique,' 'number of person,' 'using language,' and 'scope of technical art.' I suggest that the meaning of 'ordinary' in 'ordinary skilled person' of Korean patent law article 42 should be regarded as 'normal,' or 'average' level of knowledge in a specific technical field. On the other hands, the meaning of 'ordinary' in 'ordinary skilled person' in Korean patent law article 29 should be regarded as 'normal understanding' of the upmost high level of technique in the art. It is necessary and prior thing to define 'field of technical art,' 'level of technical art', and then define 'ordinary skilled person in the art' before judging inventive step and description requirements.



특허권 효력에 관한 검토 - Patent Troll의 남용적 권리행사에 대한 효력 제한 방안을 중심으로 -


한국지식재산학회 산업재산권 제30호 2009.12 pp.105-147

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Recently, as the type of patent enforcement has been varied and the technologies in IT and machine sector have been complexed and sophisticated, there is a need of reviewing effect of patent right. Especially, in the cases of Patent Troll which is not doing patented invention directly, it is possible to enforce patent severely and extremely because there is no need of doing cross-licensing and being filed a lawsuit on the ground of infringing patent. Based on that reason, patent abuse of Patent Troll should be limited. This article suggests the way of limiting effect of patent right on patent abuse of Patent Troll with discussions on the essence of patent right and eBay case by U.S supreme court which admits damages based on infringement of patent but denies injunction. For this, it is important and urgent to classify and specialize the act of patent abuse of Patent Troll. The application of general principle such as the doctrine of misuse of rights might be possible theoretically to limiting effect of patent right. However, it may invite problems because of current Korean legal system so it should be solved through revising legislation to complement the required conditions of compulsory license.



일본의 특허풀 경쟁정책 변화와 한국에의 시사점


한국지식재산학회 산업재산권 제30호 2009.12 pp.149-184

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On changes of environments around technology such as the complexity of technology, reduction of product life cycle, fast evolutional rate of technology, etc. it is impossible for companies to develop all necessary technologies for products or services and make inroads into them by themselves. It is inevitable for firms to collaborate with other companies or innovation agents like university, government-supported research institutes, etc. Therefore, companies have also much interests in how they can increase the efficiency and effectiveness of the innovation process and gain the increases of innovation performance. Patent pooling can be a very useful open commercialization mechanism of technologies. In recent, Japan's public policy change on patent pools gives us much implications for competition and industrial policy. To keep step with USA and EU, Japan prepares well-established regulation guidelines for patent pooling. In particular, in 2007, Japan competition agency(JFTC) reformed the prior 1999 IP Guidelines and balanced between the IP guidelines and the special guidelines for standardization and patent pooling arrangements. However, Korea does not have systemic regulatory guidelines on patent pools. Therefore, The paper suggests that the competition agency should establish the regulation frameworkunder competition law for reducing uncertainty of competition policy and encourage exploitation of the new open technology commercialization mechanism by refining the IP guidelines in the perspective of the properties of the pooled IPRs, structure of the pools, operation and management, restrictions on the participants and/or third party licensees, and relevance with technology or industry standards, etc.



대학의 기술이전 및 사업화를 위한 접근방안 고찰 - 미국 코넬대학을 중심으로 -


한국지식재산학회 산업재산권 제30호 2009.12 pp.185-222

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The technology transfer and commercialization in university which has became the center of public interest under Bayh-Dole Act gives the measure of university activities in the United States and starts to have an effect on regional and national economic development. Of course, the direct impact of technology transfer and commercialization in universities on the economy of the United States is relatively small yet. Also revenues of universities from the technology transfer and commercialization are not as much as to cover their research funds. Above all, most universities do not withdraw the invested capital from their technology transfer and commercialization. Nevertheless, 27 universities in the United States have made more than one million dollar for a period of 2007 from the technology transfer and commercialization, Columbia university has made 135.6 million dollars, and most of all, NYU has made 791 million dollars which amounted to 2.5 times as much as total research fund. In this paper, the present state of the technology transfer andcommercialization in the United States centering around Cornell university is surveyed and several schemes for a success in technology transfer and commercialization will be drawn up for Korean universities. To sum up, it is important for universities to have a deep concern on technology transfer and commercialization, to secure human and material resources over the long term, and to strengthen capability and ability of the technology transfer centers and managers. Also faculties as an inventor should have an active mind on technology transfer and commercialization, and combine with an entrepreneur who has a spirit of true venture. First and foremost, universities need to understand the technology transfer and commercialization as not a golden goose but a fertile training ground for implanting venture-mind in their students and a driving force of the development of a local society through the academic-industrial cooperation.



국내 ICT산업에서 전략 특허를 확보하기 위한 실무적 접근 방안

박검진, 김병근

한국지식재산학회 산업재산권 제30호 2009.12 pp.223-255

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The research suggests plan to crate patents strategically by analyzing definition of ICT industry, position of domestic ICT industry in global market and its patent environment, and actually used patents in ICT industry. As a result of the research, when the number of domestic patent in NAND flash memory, flat panel display, DRAM, and mobile terminals, which show high market share by Korean ICT industry, is searched, they have generally more patents compared to the market share. Also, when ICT industry’s domestic patent arbitration is studied, it consists 42.9% of the total industry. To face such patent environment, by making a case for strategically securing patent, how to create patents through benchmarking strong patents used by companies in international patent disputes is sought. As a result, to make a strong patent, it is figured that the number of family patents and that of citation from other patents need to be large; and it is analyzed that in order to get strategic patents, securing many practices through R&D, avoidance of limited terms while writing specification, utilization of patent policy to expand the contents of invention, and prohibition of restrictive expression on equivalent interpretation while submitting statement are crucial.



상표무효사유와 상표권 남용에 관한 소고


한국지식재산학회 산업재산권 제30호 2009.12 pp.257-294

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A trademark is a word, name, symbol or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. Regulating such marks protects against consumer confusion about the source, sponsorship, or approval of goods or services or commercial activities of another. To do so, it makes actionable the use of another's trademark in ways that lead to a "likelihood of confusion". According to the purpose and background of the trademark holder to apply to register trademark, and the specific and individual situations where the trademark right was exercised, if such exercise of the trademark right against the other party goes beyond the purpose or the function of the trademark system, which is to maintain the credit of the trademark user and to protect the benefits of the users, disrupts the fair competition order and the commercial transaction order, causes confusion among users and violates the principle of good faith, such exercise of trademark right, even if it is done in the form of a right exercise, amounts to an abuse of the right to trademark, which shall not be permitted, and according to the above ground to limit the exercise of trademark right, the purpose of the exercise of trademark right, does not necessarily need the subjective condition that the exerciser shall not gain any benefits.



퍼블리시티권의 법적성격-저작권과 상표 관련 권리 중 무엇에 더 가까운가?


한국지식재산학회 산업재산권 제30호 2009.12 pp.295-330

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It is extremely unreasonable that a new bill revising the Korean Copyright Act is trying to recognize the right of publicity as part of copyright law. It’s because of the following reasons: In US where the right of publicity first emerged and still has been strongly protected, the mainstream of academic discussions and actual legislations have been based on not copyright law but unfair competition law. The traditional justification argument for copyright such as incentive theory is not well compatible with the right of publicity which is just a byproduct, not the direct result from such incentive. Even though the Korean Copyright Act already protects the subjects matter (an actor’s stage performance as well as a database) which lacks originality, it is quite a different issue whether the Act could also subsume the right of publicity. The individual provisions of rather the Korean Unfair Competition Act than the Korean Copyright Act is more related with the right of publicity. Some decisions by Korean courts implicitly took a position favoring that the right of publicity was belonging to the unfair competition law area. Therefore, the future legislation for the right of publicity should be done under the principles of unfair competition law.



디지털콘텐츠에 대한 기술적보호조치와 우회금지규정의 필요성과 문제점


한국지식재산학회 산업재산권 제30호 2009.12 pp.331-362

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Digital contents are vulnerable to copy. They are easily copied and distributed through the Internet, which may result in market failure. In order to protect market lead-time, contents providers employ technological measures such as encryption, digital right managements (DRM), right management information (RMI). These technological measures help encouraging uses of digital contents, reducing transaction cost and managing copyrights. On the other hand, banning all acts of circumvention, and all technologies and tools that can be used for circumvention has given copyright owners the power to unilaterally eliminate the public's fair use rights. As the number of copyright works wrapped in technological protection measures increases, the legitimate activities of innovators, researchers, the press, and the public are hindered. Even though the copyright system was supposed to balance between the rights of copyrighters and consumers, the anti-circumvention provisions involved in Copyright Act and Development Act of Online Digital Contents Industries disturbed the balance by providing copyrighters with the power to control access to their works. However, anti-circumvention provisions are needed to minimize thenegative effects by the characters of digital contents and the Internet. Thus, anti-circumvention provisions should be enforced and applied only when they are really needed to encourage innovation and protect competition. To do this, it is necessary to distinguish between circumventions for legitimate uses and those for illegitimate access. If anyone buys a legitimate product, he should be allowed to circumvent technological measures for fair uses.


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