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
제35호 (8건)

특허침해소송 및 권리범위확인심판에서의 진보성 판단의 필요성에 대한 검토


한국지식재산학회 산업재산권 제35호 2011.08 pp.1-52

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In patent infringement proceedings the Korean Supreme Court recently has judged whether plaintiff's patent had novelty, but it has not examined whether the patent had inventive step. This trend appears to be originated from the following belief:(1) It is obvious to distinguish between judgement of novelty and that of inventive step. (2) Judgement of inventive step requires imagination of a person skilled in the art and his technological knowledge. However, judgement of novelty does not require both an imaginal person skilled in the art and his technological knowledge in the art. However, it is reasonable that (1) it is not obvious to distinguish between judgement of novelty and that of inventive step, (2) that judgement of novelty also requires both an imaginal person skilled in the art and his technological knowledge in the art, (3) judgement of novelty can be more difficult than that of inventive step because there is no limitation in cited technology, and (4) it is unfair to do judgement of other patentabilities except inventive step. The purpose of this article is to highlight the problems resulted from the (infringement lawsuit or trial to confirm the scope of patents) cases of the Korean Supreme Court, especially in which inventive step was not judged but novelty was judged. This is to emphasize the necessity to examine inventive step of the patent in an infringement lawsuit, and to provide the court with suggestions to enhance the court's accessibility to the technological knowledge and concentrate jurisdiction on patent infringement cases.



이용발명에 있어서 이용관계의 조정


한국지식재산학회 산업재산권 제35호 2011.08 pp.53-105

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If a second patent is registered with a more considerable technical advance compared to the first one, it is necessary to guarantee the use of the second one even though the first patentee doesn’t permit it. Unless there is the permission of a compulsory license of a second patent, which contributes to our industrial development, the appearance of new improved inventions can’t be expected. The patent law requires ‘an important technical advance of considerable economic significance’ of the second one compared to the first one on condition of the compulsory license of the second one. However, we have to put more weight on ‘considerable economic significance’ rather than on ‘an important technical advance’. If the second one has already been registered in recognition of the advance, such an invention has to be allowed for use if possible. It is not realistic to even require ‘an important technical advance’. As whether there is ‘considerable economic significance’ or not can be often judged in process patents, this necessary condition is required to prevent the second one from being abused. Interests of the parties are finally mediated through the decision of the permitted limit of license and of the compensation. In deciding this, these things are to be considered – one is the profit that the second patentee makes by using the second patent, and the other is the damage that the first patentee suffers through the use of the compulsory license of the second patent.



특허권침해와 손해배상


한국지식재산학회 산업재산권 제35호 2011.08 pp.107-147

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In Korea, there was a revision of Patent law in 2001, to improve the difficulty in the calculation of the damages and the patent infringement lawsuits. The revision reflects that there are difficulty in intellectual property right protections under the former damage calculation protection systems. So, the frist clause and the fifth one of patent law 128 are newly established. In relation to the former rules, it shows it becomes better, but even now it fails to reveal that it doesn't compensate the people and institutions concerned, against the infringements of it. Compared to other legal claim lawsuits, patent infringements basically have lots of their specialized and related knowledges with their own variations and involve complexities and difficulties which make it hard to predict the results of the lawsuits Because of this, patent right owners are apt to fail not just in getting business fruits from and through their own development technology but also in assuring the desirable benefits from and through patent infringement lawsuits. It is easy that the Article 128 of patent law applies in calculating of the damages and the patent infringement lawsuits, considering the provision of Civil law on calculating of the compensation. The real profit claiming compensation for patent infringement, in spite of being the difficulty of proof damage and compensation, is in case that the proof of more damage than damage of the Article 128 of patent law and that material damage not being applied by the Article 128 of patent law



우리나라 대학의 특허창출과 기술이전 성과에 영향을 주는 요인 연구

박검진, 김병근, 조현정

한국지식재산학회 산업재산권 제35호 2011.08 pp.149-198

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This research investigates what factors affects the outcome of technological innovation and transfer of Korean Universities. Using data including college information disclosure and University industry-academic cooperation white paper, we've conducted multiple OLSs. Empirical results show that industry-academic cooperation capacity, research capacity and compensation for inventor who applies for patent affected the outcome of technological innovation measured by the number of patents applied. We also analyse factors managers of TLOs (Technology Licensing Offices) think important to the successful outcome of technological innovation and technology transfer. It appeared to be different from the results of multiple OLS analysis.



2011년 디자인보호법의 개정안에 관한 소고 - 2011년 6월 1일자 입법예고안을 중심으로 -


한국지식재산학회 산업재산권 제35호 2011.08 pp.199-235

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A move to revise the Korean Industrial Design Protection Act(KIDPA) is in the spotlight. Korean Intellectual Property Office(KIPO) integrated the agreement implementation bill to be a member of so-called the New Hague Agreement into the amended bill which introduced to the National Assembly in 2010 but suspended, and has issued advanced notice of this one bill in 2011. One of the major issues in this bill is the definition of design which amended, in order to expand the protection scope of 2D design, by defining the items classified and illustrated by Locarno agreement such as graphic symbols, get-up, logos, comic figure, surface ornamentation etc. as an ”article”. Another major issues is an exception clause regarding the single application for single design which admit an application for a same configuration to be applicable to different articles, besides the current multiple design system. The bill also comprised Related Design for similar designs as well as user-friendly clauses like those of European Community Design Regulation(CDR). The revised act is due to KIPO's endeavor to change the current act familiar to users under the New Hague Agreement. But amended rules cause considerable concern and argument because they are conflict with a basic fundamental principle of Korean Design Protection Act under which design is inseparable from the article to which it is embodied and cannot exist alone merely as a scheme of surface ornamentation etc. Also CDR is not familiar to KIDPA based on substantive examination system. This essay pointed out issues from rule logic point of view. However, the international application procedures under the New Hague Agreement are excluded since there is no controversial issue except time to join this agreement.



상표판례를 통해 본 한국과 미국의 상표침해이론 비교 및 침해기준 조화를 위한 상표정책 방향


한국지식재산학회 산업재산권 제35호 2011.08 pp.237-326

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During the 2006-2007 negotiations of the Korea-US free trade agreement, the US delegation asked the Republic of Korea to accept the 'related goods doctrine' of the American infringement standards. The Korean Intellectual Property Office (KIPO) rejected the 'related goods doctrine' due to the potential distortion or even breakdown of the Korean trademark system. A subsequent review of 'the literature, law, and cases' of both countries revealed five major insights. First, the likelihood of consumer confusion in the US and the doubt or misgivings over consumer confusion in Korea are critical tests for trademark infringements. Second, both the 'related goods doctrine' in the US and the 'similar goods theory' in Korea have such a close resemblance as to be substantially the same. The resemblance stems from the highly abstract nature of the contrasted concepts themselves. From a semiotic point of view, the extension and intension of the concepts of the 'similar' and 'related' are broad and flexible, depending upon the contextual circumstances. Third, three tests in the US trademark infringements(ⓐ the likelihood of confusion; ⓑ the related goods doctrine; ⓒ multi-factor tests) are closely interwoven and inevitably form a triadic structure. Likewise, three infringement tests in Korea(① the doubt or easiness of confusion; ② the similar goods theory; ③ discretional multi-factor tests) form a triadic structure, just as it is in the US. Fourth, the problems with the elusive and obscure concepts of related or similar goods and consumer confusion are resolved by the multi-factor test for the conclusion of infringement decisions. Hence, the scope of related goods and similar goods is actually determined by multiple factors. Accordingly, multiple factors are the ultimate key to defining the extension and intension of the concepts of 'similar' and 'related' in the resolution of trademark infringements.



BitTorrent에 의한 저작권 침해 : 누구에게 책임을 물을 것인가? - 미국 최근 판례를 중심으로 -


한국지식재산학회 산업재산권 제35호 2011.08 pp.327-361

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BitTorrent is one of the most popular peer to peer (p2p) file sharing protocols used for distributing large amounts of data. As BitTorrent has been used to download and distribute copyright infringing material such as music, movies and software, copyright owners seeking legal remedies for copyright infringement brought lawsuits against alleged infringers including BitTorrent users, torrent site providers and Internet service providers. Recently, a group of copyright owners filed lawsuit against hundreds or thousands of BitTorrent users as defendants in a single copyright infringement lawsuit. ".torrent" files can be downloaded by users all over the world and it is difficult to locate and identify anonymous unknown defendants. Therefore, the massive lawsuits against the "John Doe" defendants are likely to be dismissed because of the improper joinder and improper jurisdiction issues. The massive copyright infringement lawsuit could be misused by the copyright owner to threaten BitTorrent users and eventually settle with the individual defendants for certain amount of money. Torrent site providers should not be excluded in the BitTorrent copyright infringement lawsuit. In order to locate ".torrent" files containing the content that they wish to download, BitTorrent users must visit a torrent site which maintain indexes of available torrent files, or users may upload torrent files to share with others through the torrent sites. In Grokster, the U.S. Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression of other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." In determining the torrent site provider's contributory liability on inducement, the U.S. court considered evidence of clear expression of other affirmative steps of the unlawful objective to promote infringement such as the message or the features to stimulate others to commit infringements, technical assistance to users seeking copyright works, explicit statements by defendants. On February, 2011, the Australia court found that Internet service providers (ISPs) are not liable for what their users do with the services the ISPs provide them. However, after this decision, several major Australian ISPs have refined their approach to piracy infringement warnings. The current trend in copyright infringement lawsuits against BitTorrent users and the developed theory of contributory liability or inducement infringement suggests the constructive analysis of the transmission right under our copyright act.



특수한 유형의 OSP와 기술적 보호조치


한국지식재산학회 산업재산권 제35호 2011.08 pp.363-398

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The revised "Telecommunications Business Act" introduced the Webhard(=Web Storage) Registration System in an effort to eradicate the illegal content and pornography distribution, and to foster a healthy market environment through continuous monitoring. Up to now, on the ground of copyright law the regulation of Webhard is the way to take measure after copyright infringements happen. Also because it takes a certain amount of time to monitor and respond to copyright infringement, effective response has had difficulty. Accordingly, the Webhard Registration System will be enforced as the legal system for improvement of the effective measure. First of all, the technological measure is the most important to make the Webhard Registration more effective. However, it is controversial what kind of technological measure will be an appropriate measure for implementation of section 104. Section 104 provides that the special type of OSP shall take necessary measures such as technological measures for intercepting illegal interactive transmission of works, etc. upon the requests of rights holders. Here it is controversial whether the technological measure of section 104 refers to ‘passive filtering’ because the technology is interpreted to be taken "upon the requests of rights holders". The copyright holders are worried about that if the technological measures of section 104 are interpreted as passive filtering, it would be so hard to expect the effectiveness even after the Webhard Registration will be enforced. In particular, the copyright holders consider that Webhard is managed to achieve the direct and indirect revenues through sharing of illegal files, and then copyright infringement is inherent in Webhard. Accordingly, the copyright holders desire for active filtering as the technological measure which allows only licensed files to share. The effective technological measures for the effectiveness of Webhard Registration can be derived from the interpretation of the scope of technological measures referred to by section 104.


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