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
제33호 (9건)

종업원의 직무발명과 영업비밀로서의 보호 - 대학(원)생이 관여한 발명을 중심으로 -


한국지식재산학회 산업재산권 제33호 2010.12 pp.1-46

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Unlike the situation in the other types of employee inventions, the invention joined by graduate or undergraduate students is sharply characterized by the fact that an advising professor and various incorporated entities such as a university, an industrial corporation, a state, and etc. are joining together. But here, whether or not the students can acquire the right for the invention will be decided by whether the provision of employee inventions in the Korean Invention Promotion Act will be applied to the relation of the student with the university or the professor, while the existence of the state or the industrial corporation has no direct effect on above acquirement. To solve the problem of moral hazard which often occurs in the student's invention, it may be reasonable not only to more widely recognize for an employer to secure his own legal interest by a mutual contract with his employee as long as the invention was made by the employee even if it was not in the scope of so-called 'employee inventions' but also to heighten the standard of compensation amount for the employee. In addition, it seems more necessary to perform a careful legal review of the sharing of trade secrets because the invention joined by the student is more difficult to be protected as a trade secret while the cases in which a invention is protected as a trade secret rather than a patent right will be more and more increased.



직무발명보상제도의 효과에 관한 연구

노민선, 이희수

한국지식재산학회 산업재산권 제33호 2010.12 pp.47-80

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The purpose of this study is to analyze the effects of reward for on-duty inventions intended for SMEs which adopted Employee Invention System in 2007 when Invention Promotion Law revised and suggest improved policy measures. The study analyzed the effects of SMEs' level of reward for on-duty invention on the number of patent application, reduction of researchers' turnover, reduction of technology leakage by using Linear Regression Analysis and Logistic Regression Analysis in an effort to change SMEs' views on reward system. The study shows that the level of reward for on-duty inventions has a positive effect on the performance of patent application and reduction of researchers' turnover but has no significant effect on technology leakage. Based on the analysis result, the study suggests the government to give incentives when participate in national R&D programs, introduce special tax credit program and operate mortgage program without interest for the companies which operate Employee Invention System.



오픈마켓 서비스와 상표권 침해


한국지식재산학회 산업재산권 제33호 2010.12 pp.81-110

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Liability for contributory trademark infringement may be imposed where a manufacturer or distributor (1) intentionally induces another to infringe a trademark or (2) continues to supply a product to someone who it knows or has reason to know is engaging in trademark infringement. The test for contributory infringement focuses on manufacturers, distributors of products. There has however been an open question about whether or at least to what extent the contributory infringement doctrine even applied to services. Recently, cosmetics firm L'Oréal has failed in its bid to hold eBay responsible for the sale of counterfeit goods in France. A French court said that the online auction site had done all that it had to to stop counterfeit sales. Open market such as eBay, G-Market is an electronic marketplace, not a retailer, and never takes physical possession of goods sold through its website. eBay may be not liable for contributory infringement because it does not have sufficient knowledge of specific acts of infringement on its site and,when it does, it must act appropriately to discontinue the listing. This article has focused on four important constellations of liability - liability for open market service provider such as eBay, G-Market.



특허전문관리회사(NPE)의 현황과 국내기업의 대응방안

윤선희, 장원준

한국지식재산학회 산업재산권 제33호 2010.12 pp.111-158

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After patent troll first emerged in Korean newspaper, it became a phenomenon in Korean society. While there has been many papers on the NPE(patent troll), they rarely discuss their specific business model and their characteristics, which can be used for Korean global companies. NPE, Non-Practicing Entity is an corporation that makes profit through enforcing its patent rights without producing products from the patents. Its advent came from the U.S. patent and litigation system, that is advantageous to patent owner, like discovery, injunction, damage, venue shopping. Also, contingency free-based agreement encouraged NPE to litigate even baseless claim because it costed almost nothing even after losing the lawsuit. With the news that Korean companies suffered astronomical damage from patent infringement lawsuits from NPE, NPE came to arouse deep concern in Korea. NPEs have various business models. They includes the followings: Enforcing patent rights after building patent portfolio with R&D or patent aggregation; Defensive model against such aggressive NPE; financial firms that lend loans to NPE; IP broker; Asset management firm; IP-based transaction firm. While NPE came to be regarded as an independent business model, the concept of monetizing IP has attracted attention from many companies. To build a groundwork to analyse further NPE business models, this paper inquired typical NPEs from the models. They includes Intellectual Venture of aggressive NPE, SPH America and Blue Stone Innovation from Korean capital, RPX, AST, OIN from defensive NPE, Invention Capital with Korean NPE business model. With the trend of monetizing IP, NPE should be regarded as an accepted business model, which means that Korean companies should proactively use NPEs to maximize their profits. This means that companies should use NPE to depend companies from unexpected patent litigation and to enforce their patents for harvesting their investment. Now, it is time to think about how to use NPE to meet Korean companies' interests. Korean IP policy makers, therefore, need to make up one's policies to utilize and nourish such NPE models.



특허·저작권 남용의 본질 및 근거와 독점규제법 위반행위와의 구분


한국지식재산학회 산업재산권 제33호 2010.12 pp.159-230

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Among the available IP protections, the most important protections are patent and copyright laws. However, because of their inherent nature of exclusion, patent and copyright could be misused to prevent the continuous innovation, which is the fundamental purpose of patent and copyright laws. The IP misuse doctrine has been devised to limit IP proprietors' exploiting exclusive rights to their appropriate scope, which has been based on the rights' internal inherent limits, that is the public policy of the intellectual property laws. The content and focus of this dissertation is patent and copyright misuse,excepting trademark misuse. According to the many misuse cases, the IP misuse doctrine could be defined as the IP proprietor's exercise of the IP beyond the limitation granted by IP law policy (so called 'the public policy'). In particular, the misuse conduct may include the activities violating antitrust law because IP misuse is broader than antitrust principle. For this reason, a patentee's conduct may constitute misuse without rising to the leve of an antitrust violation. However, some commentators have insisted that IP misuses include antitrust violations and IP proprietors' exploitation beyond patent and copyright policy under IP misuse doctrine. Unfortunately, their understanding is that the IP owner' antitrust violation should be the requirement for the IP misuse, which is a different misuse style distinguished from the IP misuse violation of the public policy of the IP Law. By this article, the misuse by IP misuse doctrine should embrace IP proprietors' antitrust violation sufficiently related to the IP and the type of IP exploitations beyond the physical or temporal scope of the public policy patent and copyright law grant. Therefore, without IP owner's antitrust violation, IP misuse could be constituted by the infringement of the IP policy.



소유권과 저작권의 충돌과 조화에 관한 일고


한국지식재산학회 산업재산권 제33호 2010.12 pp.231-265

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As described in the article 202 of U.S. Copyright Act, the ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. But when we use or enjoy the any material object in which the work is embodied, there is a conflict between the ownership of copyright(hereinafter 'copyright') and the ownership of material object(hereinafter 'ownership'). Copyright is a exclusive right, So is ownership. The extreme protection of one right makes the other useless. So there must be the harmonization. The one of systems to harmonize between two rights is the first sale doctrine. But there are many others. For example, we recognize the Right of Integrity for the benefit of the author, but in owner's behalf the author shall not object to the extension, rebuilding, or other form of alteration of architecture. Even though we adopt the first sale doctrine, on the other hand, we recognize the Right of Rental for the benefit of the author: the right to rent a commercial phonogram or commercial program for profit-making purposes. So this paper research some aspects of the conflict and harmonization between the ownership and the copyright : ① the playing of commercial phonograms before public, ② the exhibition or reproduction of works of art,③ the alteration and destruction of the copy of the work and the moral right, ④ the author's right of access to the copy of work, and the right to require that a copy of work be lent for exhibition, ⑤ the first sale doctrine and its exception, ⑥ the abandonment of the material object and the right to disclose. As a conclusion this paper proposes some ways to balance between copyright and ownership.



국가연구개발 저작물 관리의 법적 고찰


한국지식재산학회 산업재산권 제33호 2010.12 pp.267-306

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In oder to make technology innovation and information exploitation for the development of national science and technology, it is needed to establish the national S&T information system for management and use of knowledge information come from national R&D programs. The research works such as R&D report and scientific treatise are very important public resources, and at the same time, creative products of researcher participating in R&D project. Therefore, as we establish the S&T information service system, we should protect the rights of producer of that research works on copyright law. In this paper, the legal issues and knowledge information management schemes about national R&D works are analyzed, and some improvement matters are suggested in establishing the national S&T information system efficiently.



퍼블리시티권의 저작권법적 보호에 대한 비판적 고찰


한국지식재산학회 산업재산권 제33호 2010.12 pp.307-347

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This article is copyright protected by the publicity about the allegations of attempts to review critically. Of course, if copyright law is based on the restrictions of property rights can be limited through the publicity could have an advantage. So I have the position of explicitly express opposition that under copyright law protecting right of publicity. This article will be examined critically the protection of the right of publicity in terms of copyright law.



IT 분야의 NPEs 특허 분쟁과 전략적 대응


한국지식재산학회 산업재산권 제33호 2010.12 pp.349-420

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NPE, standing for Non-Practicing Entity, can be defined in a broad sense as a business concern which reserves patents without engaging itself in producing or manufacturing products. Most of NPEs possess patent acquired from others, enforce it against manufacturers for royalty earnings. "Patent Troll" is a pejorative term referring to a certain group belonging to NPEs "that enforce its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic", as defined in U.S. online dictionary, Wikipedia. Enforcing its patent right inordinately, filing lawsuits or otherwise enforcing rights aggressively, and showing up in the market for opportunistic pursuit of its patent right when patented technology ripens enough in the market, these Patent Trolls are under harsh criticism that they work against industry development, and the very goal patent system is purposed for. So the patent-abusing Patent Troll should not be considered identical to NPEs who exercise their rights duly and appropriately under the patent system. Behind the growth of patent business of NPEs lie pro-patent tendency in the United States and some NPEs’ practice of reaping high profit from enforcing patent, followed by lawyers who establish licensing companies to join the market. Such growth is continuing at an accelerated pace currently, geared to increasing market investment by Invention Capital. Furthermore, the legal and patent environment of the United States provides itself a stage favorable to patent holder in enforcing rights. Defendants are burdened with risk of injunction against infringement, huge liability for damage and little success with defense of "invalidity of patent". All this environment works in favor of patent holders raising patent infringement claims, granting NPEs with substantial bargaining power. From this soil, NPEs’patent business has grown to current prosperity with 325 NPEs at large as of April, 2010. The patent licensing market in the United States grew up to 150 billion dollars in 2006, and patent infringement litigation increased to approximately 600 cases in 2009. Thicketed with patent as technology grows multi-sided, advanced and mutually incorporating and converging with thousands of techniques clustering around a single product, IT is the area full of potential patent disputes. Since it is not practically possible for a manufacturer to have all the patent required to produce its product, cases of involvement in conflict with someone else’s patent abound. It is also impossible to survey all the patents and avoid them or enter into licenses for all of them previously. Especially,since plenty of patents owned by NPEs are with legal issues such as ambiguous scope of patent rights, no business entity in IT industry may be practically expected to clear all the prospective obstacles and compete in brand-new market. With such a rapid development of IT technology, it would be impractical to review all the patents to be disclosed one-and-half years later or develop products after completely checking out all the patents that are continuatively applied or re-issued. Given that IT is the NPE-friendly arena in enforcing patent right and that IT products, backed up by its standardization, has constructed global market with astronomical quantity in transaction worldwide, attracting patent claim for expected profit, NPEs intensively buy IT related patents. Out of 325 NPE’s in total, 75% are conducting its business in IT area, and IT-related cases represent 90% of patent infringement lawsuits brought by NPE’s. Furthermore, 75% of judgment for large amount damage award exceeding 100 million dollars come out of IT area, and 75% of IT cases arise from patent infringement suits raised by NPE’s. The fact that the 27 manufacturers most frequently sued by NPEs are all IT companies simply demonstrates that IT area is the battlefield for patent disputes. Using the lawsuit of patent infringement claim as a means to threat, NPE’s settle early with target manufacturers into license agreement, as is inferred of cell phone industry, where 95% of NPE-rised lawsuits are settled and dismissed within a year. Prospectively, this patent business of NPEs is expected to find its place in the IP industry, coupled with rapid growth of patent transaction market. The patent market will see participation of traditional non-practicing patents owned by universities or research centers and patents of venture companies,small-and-medium-sized companies and large corporations in turn. As cross-licensing practice between manufacturers declines in number,converting into open licensing, which mutually gives and takes values of patents owned, licensing market will explode in its scale, resulting in increasing number of patent transactions. To prepare for emerging market of technology transfer and growing industry of intellectual property, it is imperative to build up legal and institutional environment where fair enforcement of patent right is secured whereas undue enforcement of patent rights is regulated. Also necessary is to keep promoting industry of intellectual property so as to see healthy technology market which useful patented technology flows into and manufacturing companies obtain technology from. Since revitalization of patent business might burden the manufacturers with increased license royalties, however, manufacturers should thoroughly prepare themselves for patent claims raised by NPEs against them. Required in this connection is dispute-preventing system, efficient defense and joint efforts with other entities in handling lawsuits, and strategic approach to negotiation with NPEs. Desirably under this intellectual property environment, IT companies should carry IP management strategies intwo respects. First, they should endeavor to remove redundant royalties through risk control over patent claims from NPEs and minimize royalties via strategic bargaining. Secondly, it is now more important than ever to create patents worthy of monetary transaction in patent trading market where cash conversion is readily available, especially in the IT area, which is the core of market. In an environment that guarantees materialization of the value of patent as proprietary right with exclusive power, patent production will play a major role for a corporation to achieve increase of exclusive profit and competitive power in blue ocean.


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