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
제31호 (10건)

연구 또는 시험을 하기 위한 특허발명 실시의 의미와 한계


한국지식재산학회 산업재산권 제31호 2010.04 pp.1-42

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Durch die Entscheidung des US-amerikanischen Supreme Court in der Rechtssache Merck vs. Intergra sowie durch die Implementierung der EU-weiten Bolar Regelung, ist das patentrechtliche Versuchsprivileg im Bereich der Forschung im Zusammenhang mit der Arzneimittelzulassung auf beiden Seiten des Atlantik ausgedehnt worden. Wenngleich durch diese Entwicklung eine Annäherung der Reichweite des Versuchsprivilegs in den USA einerseits und in Europa andererseits für den Bereich der Arzneimittelforschung erreicht worden ist, ist nicht zu verkennen, dass beide Rechtsordnungen hier von völlig unterschiedlichen Startpunkten ausgehen -der engen branchenspezifischen und zweckgebundenen Ausnahme von Versuchen für die arzneimittelrechtliche Zulassung in den USA und dem breiten branchenunabhängigen, dafür aber im Grundsatz an dem reinen Forschungszweck orientierten Versuchsprivileg in Europa. Im koreanischen Patentgesetz ist das Versuchsprivileg allgemein und nicht branchenspezifisch als Grudsatz des Patentrechts formuliert. Damit stellt sich die Frage, ob der kommerzielle Zweck der Erlangung einer arzneimittelrechtlichen Zulassung das Versuchsprivileg ausschließt. Dies sollte verneinen und damit klarstellen,dass das allgemeine Versuchsprivileg auch solche Versuche umfasst, die auf eine arzneimittelrechtliche Zulassung hinzielen.



이용발명에 대한 통상실시권 허여의 요건에 대한 비판적 고찰


한국지식재산학회 산업재산권 제31호 2010.04 pp.43-72

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According to the patent law, only when the invention claimed in the second patent which cannot be exploited without infringing another patent (“the first patent”) involves an important technical advance of considerable economic significance in relation to the invention claimed in the first patent,non-exclusive use of the first patent can be allowed to the patentee of the second patent. On the other hand, patents are given to an invention when it is industrially applicable, new, and non-obvious, disclose the invention enough to be easily practiced by a person with the ordinary knowledge in the related technology, and write claims clearly and concisely fully supported by the specification. Therefore, even though an invention of using the first patent is qualified as being patented and is patented, if the second patent invention has not an important technical advance of considerable economic significance in relation to the invention claimed in the first patent, the patentee of the first patent cannot practice his invention as long as the first patent owner would not permit the second patent owner to use the first patent. This makes a patentee cannot practice his patented invention only because his invention has not 'an important technical advance of considerable economic significance.'This is absurd because even though the second patent owner has given the technical information of his invention to the public and received a patent, he cannot practice his invention and practically have not any chance to recoup his investment. To cure this absurdity, I propose that the clause of the patent law regarding the chance to non-exclusive use right should be eliminated.



Grantback 조항의 유효성


한국지식재산학회 산업재산권 제31호 2010.04 pp.73-108

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The Grantback Clause is one of patent licensing tools by which the licensor of a patent secure his future control of improvement patent. It raises some concerns on the patent misuse and antitrust. I exam the patent misuse issues under patent law and antitrust issues under antitrust law to the grantback clause in licensing agreement. These two issues, patent misuse and antitrust violation should be separated. The patent misuse is not usually regarded as antitrust violation. To be an antitrust violation, some adverse affect to competition or market power should be proved. Any validity concern has not been raised in Korea, the cases and debates in the U.S. have been reviewed. A firm definition of grantback clause is not yet established. Thus, discussions would not clearly define problems and conclusions. The non-exclusive granting back to licensor's use of licensee improvement patents generally are not illegal per se and not objectionable. The exclusive grantbacks, which grant licensor sole rights to licensee improvements by assignment, may be illegal by establishing market control. The accumulation of patent by accumulation of patents of several licensees which provide the original patentee the control of industry would be illegal more seriously.



상표 사용의사 없는 출원의 방지 및 사용주의 요소의 강화


한국지식재산학회 산업재산권 제31호 2010.04 pp.109-147

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The purpose of the Trademark Act(TMA) is to maintain the business reputation of persons using trademarks by protecting the latter, and thereby contribute to the development of industry and protect the interests of consumers(Sec. 1 TMA). The TMA establishes a fundamental system of protection based on "registration" and not "use". Thus a trademark can be registered if a trademark applicant has no intention of using the trademark in trade. The most obvious situation of lack of intent to use occurs where a person applies to register a trademark with the intent either of preventing a competitor registering the trademark or selling (or 'trafficking in') the registered trademark. This study mainly reviewed the trademark system for the purpose of searching problems of 'No Intention to use the trademark and finding the ways to make up for the current system. First, regarding the matter of trademark law revision, one possible way to settle this problem is to regulate 'trafficking in trademark through the interpretation of the current trademark law provision. The other possible method is to make revision the trademark law. The merits of reinforcing 'usage system' are securing the legal stability and enhanced objectivity.



패러디와 著作權


한국지식재산학회 산업재산권 제31호 2010.04 pp.149-193

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A parody, in contemporary usage, is a work created to mock, comment on,or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation. Parody gives us a new way to look at the original work and the world. We look at the many parodies in every day life. But there contains many copyright issues. Especially in Korean Copyright system there is no express exception for parody like French, Spanish, Belgian Law, and no general fair use clause like U.S. copyright law. This gives us many troubles to accept the parody within copyright system and to make it a legitimate work. And there are economic rights and moral rights in the Korean copyright system, so-called dual system unlike german copyright system. This also gives us trouble. In Korea many scholars consider that parody is a derivative work. But some consider it as a independent work, even though depending on the underlying work. This paper researches some copyright cases: Walt Disney Productions v. Air Pirates case, Campbell v. Acuff-Rose Music, Inc. case, Suntrust Bank v. Houghton Miffin Co. case, ‘Alcolix’ case, Photo-montage distortion case,etc. Until now in Korea we can manage the parody copyright isssue with the application of the citation clause(§28: It shall be permissible to make quotations from a work already being made public provided that they are within a reasonable limit for news reporting, criticism, education and research, etc. and compatible with fair practice). In a sense it has the same effect as the fair use clause of U.S.A. But it has a limitation. It restricts only the economic right and can't solve the moral right issue. And when cited the other's work, we must indicate the part of quotation. In parody it's nearly impossible to indicate the part of quotation. So this paper proposes that as a general clause we introduce the fair use clause into Copyright Act and the amendment of the Article 5 of Copyright Act. That's as follows: The parodic work is not regarded as the derivative work. The reason is as follows : A parody is almost always quasi-revolutionary in concept. So in the view of such a parodic nature, we regard the parodic work as a independent work even though parodist use the underlying work.



방송콘텐츠 유통의 저작권법적 쟁점 - 지상파 재송신을 중심으로

황창근, 최진원

한국지식재산학회 산업재산권 제31호 2010.04 pp.195-237

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The development of technology made a broadcasting environment changed and brought the era of multimedia and multichannel broadcasting. As the result, the monopoly or the oligopoly of a media platform came to an end, and the content started to dominate the media. Terrestrial broadcasting companies faced a serious crisis. So, the diversification was inevitable for them; the charge of retransmission is now at the top of the list. The overseas cases on terrestrial retransmission head appear in various forms adapted to each country's circumstance, not following a specific standard. However it is worthy of notice that the list of retransmission is being expanded to New media. Here are two reasons: the general accessibility for the public object and the fair competition for the politic object. It is very probable in Korea to re-transmit terrestrial broadcasting content via Cable TV, satellite, IPTV or New media. And this always involves copyright problems. The current law doesn't have articles specific enough to deal with this change of broadcasting environment, so the consideration de lege ferenda including the adoption of 'must offer' or the reexamination of broadcasting territory is necessary, in order to achieve the politic goal of terrestrial retransmission.



이미지 검색과 인터넷 포털의 책임범위


한국지식재산학회 산업재산권 제31호 2010.04 pp.239-266

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Search engines that display third party material or images through framing or inline linking may be directly liable for violating that copyright holder exclusive right to publicly display or copied their work. Notwithstanding, Search engines use of images in thumbnails does not harm the market for holder's images or the value of his images. By showing the thumbnails on its results page when users entered terms related to holder's images, the search engine would guide users to his web site rather than away from it. The copyright holder retain control over where and how to display his work on the Internet. However, search engine is a fair use under the Copyright Act.



퍼블리시티권의 양도성에 대한 재검토


한국지식재산학회 산업재산권 제31호 2010.04 pp.267-301

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The privacy right has been considered as one of the most important rights, which can provide people with the good protection of private life. However, it did not sufficiently protect the various rights of famous people. They did not want to be isolated from others but wanted to be publicly known to others. What they wanted was not the negative prohibition but the positive control for commercial use of their name or likeness. A new and special right was proposed in the United States to provide with good answers, and this was the publicity right. But the concept of this right still failed to get complete consents from other countries. Those who support the publicity right usually try to eliminate the personal nature from this right. However, there is one big problem in the publicity right. It is that, as far as this right is related to the personal nature such as name or likeness of a person, the publicity right can never be separated from its personal nature. This problem does not show itself clearly when the original owner keeps the right, but when the original owner transfers this right to the third party. Because of this problem, some scholars or states denies the transferability of publicity right. Real problem can be found typically in the event that an actor A transfers his publicity right to his management company. When A leaves the company, A cannot enjoy or control the commercial use of his own name or likeness for life. Thus, A cannot leave the company but has to stay under the de facto slave contract. In order to avoid this kind of problems, the concept of publicity right shall be changed. The right shall not be such a right which can control the commercial use of a person's name or likeness, but a right which can only use a person's name or likeness for commercial purpose for a certain period. I suggest this right shall be considered as a special right of license,naming “publicity license.” The original owner can grant to a third party a license to use his name or likeness for a certain period under the license agreement. This license cannot be transferred to a third party without the consent of the owner. Moreover, the license period shall be limited at most to three to five years for protection of the owner's private life. This changed concept of publicity license can solve the problem and help to protect the owner from any unreasonable loss of his own name and likeness. A person's name or likeness is not the object which can be transferred to another person.



이러닝(e-Learning)의 활성화를 위한 법적 검토 : 저작권법을 중심으로


한국지식재산학회 산업재산권 제31호 2010.04 pp.303-350

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e-Learing is the convergence of the information technology and education. E-learning technologies and learning systems that combine information presented by the concept of e-learning contents and learning services, use made by means of learning activities. So far, e-learning is a kind of private education in terms of savings in progress if the education policy of universal education and the knowledge economy is now based on the structure of the society. e-Learning become an important element of e-learning contents and services produced in the most important legal issues that are copyright-related information. The current copyright law and the accepted e-learning is too restrictive side. e-Learning Industry Development Act has a provision on intellectual property, but the provision is only declarative that the rule is difficult to apply to e-learning contents. Although associated with a variety of e-Learning contents, e-Learning contents create business as the work by taking advantage of texts in the contents creation in order to obtain permission from the copyright holder to use. But it is not easy to receive permission to use, e-learning contents requires good timing is actually a legitimate license is often difficult. Therefore, through the maintenance of copyright in the creation of e-learning contents that can be done to realistically support system is necessary. Activation of such e-learning to the maintenance of copyright restrictions and the introduction of regulations such as fair use under copyright law revision are required.



상표위조행위 처벌에 관한 형사법적 문제점과 개선방안


한국지식재산학회 산업재산권 제31호 2010.04 pp.351-388

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In recent years, the illegal Trademark Counterfeiting and counterfeit trademark goods have become a global issue. A so-called 'dead-copy goods',those are the infringements of the Trademark laws. In response, recently the major developed countries are pushing to 'Anti-Counterfeiting Trade Agreement (the following is a short designation, 'ACTA'). But now, we aren't prepare to conditions that demands from ACTA's standards, so our Trademark Law's criminal punishments and procedures have to change. At least in case of willful trademark counterfeiting on 'a commercial scale' should be applied to the criminal procedures and penalties. For the answer to that, first of all, we have to divide between 'the general Trademark' and 'the serious infringements'. The serious infringements means that intentional counterfeiting on a commercial scale. A commercial scale's meaning in public is that a for-profit or business act working systematic and on a large scale. Therefore, it is mainly required to define 'the serious trademark infringements' distinguishing from the general infringements including that 'a commercial scale', that is 'for-profit' and 'business of systematic and grand-scale'. Also to add to this, a matter of the distribution of counterfeit trademark goods might to be make a rule that include many type of after-attends acts to the trademark counterfeiting. Therefore, we have to make a regulation on the ground of the principle of "nulla poena, nullum crimen sine lege" for definiteness and propriety of legality.


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