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
제32호 (7건)

발명·특허 특성화 고교생의 대학진학 방안


한국지식재산학회 산업재산권 제32호 2010.08 pp.1-39

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One of the most important factors dominating the 21st century economy is intellectual property, an intangible property. It is not an exaggeration to say that we have been promoting economic development through imitating strategy. However, imitation is no longer tolerated in the present nor can we survive the rapidly shifting global economy by merely emulating others. The fundamental of intellectual property system is human resources and we can develop into an 'intellectual property rich nation' only if sufficient and high-quality human resources are being provided. In this respect, 10government departments and agencies such as the Ministry of Education and Human Resources Development published a report on 'Progress of government department consigned and invested specialized vocational high schools promotion' and decided to carry forward the project. Moreover, they agreed to support and establish specialized high schools after selecting number of them based on industrial demand. As part of the government's related project and under the goal of increasing the number of patent holders and inventors, The Korean Intellectual Property Office is providing budgetary support to 4 selected vocational high schools among 702 of them nationwide. However there are difficult challenges for patent-holding high school seniors and those who are specialized in invention to enter college based on their speciality. In other words, there are not many colleges granting special admissions to these students. This thesis provides solutions for patent-holding students and those who are specialized in invention to enter college in the perspective of universities. In addition, this thesis examines the social awareness of the present system of promoting technical human resources, education system of specialized high schools and patent related universities, and measures for these students to enter college.



특허의 진보성개념의 발전과 전개 : 반공유의 비극과 효율성


한국지식재산학회 산업재산권 제32호 2010.08 pp.41-86

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In 2007, the U.S. Supreme Court stats that "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility" in KSR. The Court worried about the tragedy of anticommons, which makes unefficient use of resources due to too many exclusive rights, by the low level of barrier to patents under CAFC's TSM test which easily allows granting patents to inventors and easily recognizes patent infringement. The requirements for a patent are novelty, nonobviousness and utility in the U.S. The novelty requirement based on the natural rights perspective protects the public from allowing bad patents. The nonobviousness based on the Utilitarian perspective promotes the efficiency and welfare of the public. The U.S. court's view of novelty and nonobviousness deeply stems from the point mentioned above. Historically, the patent requirements evolved from the novelty to the nonobviousness. The case law shows this point:novelty, novelty plus, flash of genius, scrutinize-with-care (synergism), and nonobviousness. The low level of the requirements for patents of post Graham burdens the public under the pro-patent policy by the U.S.Government and the U.S. Courts then the KSR court comes back to the Graham. I argue that the U.S. courts use the nonobviousenss requirement to control the economic efficiency then, the KSR courts try to avoid the tragedy of anticommons by raising the level of obviousness. To do so, I analyze historical developments mentioned in several cases.



외국어상표의 보호


한국지식재산학회 산업재산권 제32호 2010.08 pp.87-116

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As telecommunication including internet, travel abroad and international trade have increased, the exchange of trademark has been expanded. In Korea, according to 2007 statistic, 738 Korean trademarks were filed but 1516 foreign language trademarks were filed for medical machine and tools. Most of these applications are about English trademarks. The reason is that the first learning foreign language is English and the society emphasizes fluent English in Korea. A foreign language trademark can be registered as Korean trademark can if it has distinctiveness and conform to section 7requirements of Trademark Law. The distinctiveness is judged from the perspective of general consumers and interested persons. However, Korean are not familar with foreign languages other than English and then, non-English trademark can easily acquire distinctiveness. Moreover, even English trademark more easily find distinctiveness than Korean trademark. Therefore, there is a possibility that a foreign generic or descriptive word can be registered as a trademark. In the U.S., the doctrine of foreign equivalent has been applied to prevent registration and enforcement of claimed rights in foreign generic terms. In China, Chinese trademark and its transliterated trademark are non-similar trademark in general. However, if a registered trademark has its own conception or is a famous mark, the transliterated trademark is considered similar to the registered trademark. Our current examining guideline for a foreign language trademark may not reflect the change surrounding society and international circumstances. In my opinion, we need to adopt a similar theory to U.S. doctrine and a foreign language trademark must be reviewed from foreigners' view using it.



영업비밀과 근로자의 경업금지


한국지식재산학회 산업재산권 제32호 2010.08 pp.117-153

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Trade secret means any technical or operational information useful any production and sale methods and other business activities, which is not known to public, has an independent economic value, and has been maintained in secret by considerable effort. The employee obtains the trade secret in the course of employment. and if employee discloses the obtained trade secret to the outside world, the company faces the fatal trouble in management. If the employee violate the Unfair Competition Prevention and Protection of Trade secret Act. However companies should not forbid illegally their employees from transferring to another company, prohibit them of competitives transaction, or force them to make a secret oath. The trade secret should be interpreted in detail to protect the employee human rights. Also courts more clearly employee's duty of non-competition boundary or prohibited business model. Furthermore, we need to discuss the likelihood that protecting trade secret may interfere with the constitution-guaranteed basic rights such as the freedom to choose an occupation and the right to know. Finally, it discusses the issue of what happens when the protection of trade secret conflicts with fundamental human rights and proposes an approach to avoiding such conflict.



현행 저작권법상 디지털 저작물 보존과 문화ㆍ산업발전의 관계


한국지식재산학회 산업재산권 제32호 2010.08 pp.155-192

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The digital contents protection is a copyright protection method that secures the monetary reward of copyright holders by preventing the contents from being copied. Based on the copyright law, the public domain of digital works is certainly worth as much as the protection. In reality the emphasis is more focused on the topic of the protection than the public domain. This view towards the copyright holder may raise a problem to interrupt the purpose of the copyright law, ignore the intrinsic attribute for the protection,and block the creative activities of author. The highly excessive stress of creative industries would be getting worse, even which mentioned one of the problem solutions that released from the copyright related hardship of the networked information technology. This article focuses on paying more attention on the gravity of the digital preservation for the next generation, and on striking the balance among the multiple purposes of the existing Copyright Act through the digital contents.



출처명시의무에 대한 고찰


한국지식재산학회 산업재산권 제32호 2010.08 pp.193-229

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This paper discusses the issues related to the obligation to indication of sources. Over the past few years, a considerable number of studies has been conducted on the plagiarism, including quotation. The most controversial topic in plagiarism at present is self-plagiarism or re-contribution. And the central problem of judging whether it is plagiarism or not is indication of sources. Therefore it is necessary to take a close look at the indication of sources. However there has been no or little study that tried to focus on the obligation to indication of sources itself. Although principally plagiarism has provoked a controversy, I would like to limit the discussion to the obligation to indication of sources in this article. As the purpose of this paper is concerned, I think it is not necessary to discuss plagiarism in detail. So, I will concenturate on the following issues. (i)leagal nature of the obligation to indication of sources, (ii)reason of imposing the obligation to indication of sources, (iii)examination of Limitation regulation to author's property rights,(iv)Relation to moral rights, neibouring rights and other rights in copyright act, (v)Other related problems. Futher resarch on the obligation to indication of sources would clarify the association of indication of sources and plagiarism or quotation.



패션디자인 보호를 둘러싼 분쟁양상과 법적 쟁점 - 저작권법ㆍ디자인보호법 및 부정경쟁방지법상 판례를 중심으로 -


한국지식재산학회 산업재산권 제32호 2010.08 pp.231-289

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This paper suggests that Copyright Approach appears to be better alternative for protection of fashion design when compared to design law or unfair competition law. However, for the solutions to the problems of implementing copyright for fashion, the Copyright Protection of fashion design is necessary to meet realistic needs and provide a realistic duration. In sum, the Copyright Act provide substantive protection to fashion design. In sum, a more substantive, stronger protection of fashion design can be found through the Copyright Act as works of applied art. This paper will be described with the following;In section Ⅱ, this paper will discuss whether or not fashion design currently is or could be protected under the copyright law, highlighting existing doctrines on useful articles and separability and comparing the US and Japanese legal approach to copyright protection for fashion design. The current copyright law will be maintain settled copyright principles concerning physical or conceptual separability and the useful article doctrine. However,highlighting the legislative intent of the provisions of works of applied art under the current copyright law, the court must not be continuing to uphold the traditional, restrictive interpretations of the Copyright Act and its provisions of works of applied art. Consequently, it is necessary to adopt a limited duration applied to the appropriate protection of fashion designs in addressing the concerns of the overprotection suchlike long-term duration (during the survival of the author and until 50 years after death). In section Ⅲ, this paper will discuss whether or not fashion design currently is or could be protected under the unfair competition law. Under the unfair competition law, a designer must show that the sale of a copy is likely to confuse the public, because the public has acquired a secondary meaning for mark. Fashion is notoriously ephemeral and transient. In fact, by the transient and seasonal nature of the fashion industry, the majority of designers will be defeated. Thus, the Dead Copy Prohibition provision was newly established and introduced as an act of unfair competition as Article 2,subparagraph (1), item (Ja) of the amended Act of Unfair Competition Law of 2004. The protection period is very short, only for 3 years as the minimun investment pay-back period. In section Ⅳ, this paper will discuss whether or not fashion design currently is or could be protected under the design law. Under the current Design Protection Act, protection is granted to a new, original and ornamental design for an article of manufacture. However, fashion designs have frequently held to have failed these requirements in the court decisions. Even if they met these requirements, the design right is difficult and expensive to obtain, and entail a lenthy examination process. According to an commentator, design law would appear to be a poor fit fashion design. Thus,A non-examination design registration system(Article 2, subparagraph (v))was introduced under the former Design Act(enforced on March 1, 1998). The design registration procedure of Korea is characterized by being referred to as the double track. In section Ⅴ, this paper will summarize conclusions.


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