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산업재산권 [Journal of Industrial Property]

간행물 정보
  • 자료유형
    학술지
  • 발행기관
    한국지식재산학회 [Korea Intellectual Property Society]
  • ISSN
    1598-6055
  • 간기
    연3회
  • 수록기간
    1995~2019
  • 등재여부
    KCI 등재
  • 주제분류
    사회과학 > 법학
  • 십진분류
    KDC 360 DDC 340
제37호 (8건)
No

【발표논문】

1

자기공지에 의한 공지 예외의 취지를 출원 후 보정할 수 있는지 여부 - 대법원 2011. 6. 9. 선고 2010후2353 판결을 중심으로 -

박태일

한국지식재산학회 산업재산권 제37호 2012.04 pp.1-40

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Article 30 (1) 1 of the Korean Patent Act provides that "when a person having the right to obtain a patent has caused his/her invention to fall under any subparagraph of Article 29 (1)," ("laid-open application") "if the patent application there-for is filed within six months from the applicable date, the patent shall not be deemed to fall under any subparagraph of Article 29 (1)."The preceding part of paragraph (2) of the same Article provides that "any person intending to have paragraph (1) 1 applied shall file a patent application in which the claim is stated to that effect." Recently, the Supreme Court of Korea, in case where the person succeeding to the right to receive the patent of the inventors who presented research papers about the research of the invention for a patent application, and filed the patent application in which the claim of "patent application as an exception to laid-open application" was not stated on June 21, 2006 and on the next day, i.e., June 22, 2006, again submitted to the KIPO the document titled as “submission of evidentiary documents proving the exception to laid-open application" with the contents that the invention for a patent application was laid open by publication on May 26, 2006 and "evidentiary documents are submitted in accordance with Article 30 (2) of the Patent Act," ruled that since the person filed the patent application without stating that the invention falls under the provision of an exception to laid-open application, and only at the later time, submitted the document with the claim that the patent application falls under the provision of an exception to laid-open application, Article 30 (1) 1 of the Patent Act can not be deemed as applicable to the invention for a patent application. Since the Supreme Court Decision is the first judgment on whether the application of the provision of exception to laid-open patent application in Article 30 (1) 1 of the Patent Act can be newly asserted as the amendment after the filing of the patent application, it is highly significant. I examined the validity of the Decision thoroughly from the viewpoint of comparative jurisprudence and the tenets of the law.

8,500원

2

부정경쟁방지법에 의한 상품형태의 보호

정봉현

한국지식재산학회 산업재산권 제37호 2012.04 pp.41-126

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The present age is also known as the period of design management. This is due to the importance of design for companies and consumers alike. The greater part of consumers consider the design of a product to be as equally important a factor as that of quality or price. Because a design, due to its special quality of being expressed in the exterior of a product, can be easily copies even as it plays an important role in the choice of consumers. However, such acts of copying discourages the creative urge and prevents the introduction of new and convenient products. The best solution for preventing the copying of designs lies in the establishment of an "early rights" for designs. But registering copy rights for designs takes a long time. In short, the current design protection law has not been able to operate adequately against the copying and misappropriation of designs. Therefore, there had been calls for improving the related laws so that non-registered designs can be protected. In response to such a need, in 2004, while amending the "Unfair Competition Prevention and Business Trade Secret Protection Act," article 2. 1. ⒤[ja] calling for the prevention of copying of the exterior form of a product was introduced. Therefore, detailed examination of the possibility of design protection through article 2. 1. ⒤[ja] enactment will be undertaken in order to provide its evaluation as well as means of reform.

15,400원

【연구논문】

3

이미지 검색서비스의 저작권법적 문제 - 미국, 독일 및 한국에서의 최근 판례를 중심으로 -

박영규

한국지식재산학회 산업재산권 제37호 2012.04 pp.127-166

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Der Beitrag geht vor dem Hintergrund urheberrechtlicher Beschränkungen der Frage nach, ob Thumbnails in Bildersuchmaschinen unerlässlich, sozial nützlich, aber rechtswidrig sind. Einleitend stellt der Beitrag dar, wie Suchmaschinenergebnisse aussehen könnten, ohne auf Thumbnails, also die in Suchergebnislisten derzeit angezeigten daumennagelgroßen Vorschaubilder, zurückgreifen zu können. Der Beitrag weist darauf hin, dass in den USA die Nutzung solcher Vorschaubilder nach der fair use doctrine anerkannt ist, sich die Rechtsprechung in Deutschland aber bei der Beurteilung von Bildersuchdiensten im Internet schwer tut. Der Beitrag gibt zunächst einen Überblick über die rechtliche Problematik bei der Nutzung von Thumbnails unter besonderer Berücksichtigung der Verletzung von Ausschließlichkeitsrechten, der Verletzung von Urheberpersönlichkeitsrechten, der urheberrechtlichen Schrankenregelungen und der Annahme einer konkludenten Einräumung von Nutzungsrechten für Suchdienste. Ferner befasst sich der Beitrag mit einem möglichen Ansatz bei den Haftungsprivilegierungsvorschriften. Nach einem Fazit werden Lösungsansätze erörtert.

8,500원

4

게임물 제작상 영업비밀의 보호

김윤명

한국지식재산학회 산업재산권 제37호 2012.04 pp.167-214

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Gaming industry is a typical culture contents industry. In particular, creating the world's first online game on the market for online games by Korea's leadership is also holding area. However, with the development of gaming industry in the area of ​​intellectual property is becoming a problem. Trade secrets in the game produced can be a problem for the protection of game content embodied in the idea itself, the de facto information and known information through confidentiality agreements and obligations are protected by trade secret or whether it is valid. In fact, the de facto information, trade secrets and is believed to be lost province, because the requirements acknowledging that trade secrets is not valid. In terms of policy for the protection of trade secrets, institutional efforts are necessary, but excessive protection policy can be understood differently. Trade secrets and trade secret holders to disclose their contribution to the social protection through patents to choose thick or, according to the public without the contribution of social protection as trade secrets, whether the business judgment would have been selected based on. Nevertheless, trade secret protection for the excess carriers rather than weaken their commitment to technology development will be. Thus, the excessive protection of trade secrets protection system, rather than taking a voluntary conservation efforts on technology incidental to the holder's industrial competitiveness is to follow a policy judgment.

9,700원

5

2차적 저작물작성권의 양도추정에 관한 연구

김병일

한국지식재산학회 산업재산권 제37호 2012.04 pp.215-250

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There is no question that the creator of a derivative work that is not an infringement of the underlying work is the owner of rights of copyright in that derivative work, but does not acquire any rights to the underlying work. The creator of a derivative work must create the derivative work with the authority of the copyright proprietor since the copyright proprietor of the underlying work has the exclusive right to make derivative works. According to Section 45(2) of the Korean Copyright Act(KCA), the right of the production and exploitation of a derivative work as prescribed under Section 22 shall be presumed not to be included in the transfer, unless otherwise stipulated, in case author's property rights are transferred by assignment in whole. Software copyright transfer means that the contributor assigns to the software copyright ownership on her contributions. Recently, there has been critic on the presumption of assignment the right of the production and exploitation of a derivative software work. This study examine the legal problems of Section 45(2) of the KCA.

7,900원

6

특허절차상 생물학적 물질 기탁제도에 관한 연구

심미랑, 장태미

한국지식재산학회 산업재산권 제37호 2012.04 pp.251-300

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When filing a patent application for an invention relating to biological materials including microorganisms, the applicant is obligated by law to deposit the relevant material or microorganism at an institution designated by the Patent Office Commissioner, in principle, in order for the specification to meet the disclosure requirement as well as for third parties to have access to samples of the biological materials. Concerning this, the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure is an international treaty signed in Hungary on the 28th of April, 1977. The treaty came into force on August 9, 1980. This treaty is commonly known as the Budapest Treaty. The Treaty makes the patent system of the contracting state more attractive because it is beneficial to the depositor if s/he is an applicant for patents in several contracting states. The deposit of a microorganism following the procedures in the treaty will save money of the depositor. It also helps in increasing the security. With the recent development of the biotechnological industry, however, the patent deposit system of a biological material has been criticized as having not completely responded to the changes in the circumstances of the times, and improvements are required both in terms of the system and related regulations. The Current Korea Patent law, related regulations and rules don't enough reflect the Budapest Treaty, therefore, the related procedures are unclear. In this research and study, based on the analysis of the Budapest Treaty and the law relevant to the deposit of biological materials in the patent procedure in he United States, European Union and Japan, we propose an ideal legal improvement of the patent deposit system for biological materials in Korea.

10,000원

7

프라이버시의 보호에 관한 비교 연구 - 한국과 미국의 판례를 중심으로 -

박준우

한국지식재산학회 산업재산권 제37호 2012.04 pp.301-336

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This article introduces Korean and U.S. cases on the protection of right of privacy. It reviews a number of U.S. privacy cases based on Dean William L. Prosser’s categorization: appropriation, unreasonable intrusion, public disclosure of private facts, false light in the public eye. It also selected and examined Korean privacy cases, which correspond to Dean Prosser’s four privacy torts. Korean courts have used various terms for the protection of privacy, such as ‘right to name,’ ‘right to picture,’ ‘protection of private life,’ ‘protection of privacy,’ ‘right to control personal information,’ etc. Korean courts and scholars seems to have used the terms ‘privacy’ and ‘private life’ as having almost the same meaning. Korea Supreme Court and some scholars say that right of privacy consists of passive right to prohibit acquisition or disclosure of personal information and active right to control the use of personal information. However, I am of the opinion that the latter right is not symmetrical with the former one, but only part of the former right in a special circumstances. That is, the circumstances in which an institute, whether it is public or private, have collected personal information in a large scale. Dean Prosser’s four privacy torts are basically illegal acquisition, use, and disclosure of personal information. And these three basic torts are also found in the tort of trade secret. This means that the right of privacy is located at the interface between tort and intellectual property. Thus, studies on the origin and history of the protection of privacy, and on the development of its legal theory can suggest appropriate solutions for the protection of trade secret and publicity, and for the right to disclose work in Copyright Act. Furthermore, it could suggest an optimal level of protection for a new kind of personal information in the future, and prevent the information from over- or under-protection.

7,900원

8

소셜 네트워킹 사이트(Social Networking Site)상의 개인정보의 프라이버시에 대한 연구 - 최근 미국 판례를 중심으로 -

박유선

한국지식재산학회 산업재산권 제37호 2012.04 pp.337-376

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The absolute anonymity on the Internet has gone away. Along with the emergence and the explosive growth of social networking sites, digital dossier created by aggregating personal information on social networking sites like Facebook, MySpace and Twitter has an effect on the person's real life counterpart. Unlike politicians, businessmen and celebrities, a general user utilize social networking sites to communicate with her "friends" who have been invited by the user based on the existing relationship, and the user does not expect her personal information on her profile, pictures, comments on a "wall" to be shared or disseminated to third parties or to the public. Therefore, if the user's personal information that is allowed only for the user's friends or a certain group of people to access has been disseminated, it can cause harm, especially with respect to individual privacy. In recent years, social networking sites have turned out to be a primary source of evidence in legal proceedings. It has become more important to determine who controls the user's privacy on social networking sites. It has been well settled that a user has no privacy interest in her personal information disclosed to the general public because the information is no longer a "private fact" that can be protected from public disclosure. When the user utilized the available privacy settings on Facebook and MySpace to restrict access to only those “friends” she wanted to share information with, the question arises as to whether the user can assert her privacy right against unauthorized disclosure of her personal information. On this issue, the courts in each coast of the U.S. have reached different conclusions. In Romano v. Steelcase, Inc., the New York court found that the user had no reasonable expectation of privacy in what she posted to her Facebook and MySpace pages, regardless of her individual privacy settings, and granted defendants access to the plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted or archived content. In Crispin v. Audigier Inc., however, the California court recognized the difference between private messages and comments posted on a "wall" accessed by the user's "friends" or the public, and inferred the user's subjective expectation of privacy from her privacy setting. In denying the user's reasonable expectation of privacy, the New York state court reasoned that the user's personal information which the user restricted access by adjusting her privacy setting still can be accessed by the user's friends and social networking site operators. In addition, the court gave a significant weight to the fact that most social networking sites provided privacy policies and recognized that the user was informed that her personal information might be disseminated by her friends or third parties. On the other hand, the California court distinguished private messages from posting and personal information disclosed to the public, and potentially recognized the user's reasonable expectation of privacy for the personal information with restricted access. Furthermore, the privacy policy of social networking sites could be interpreted as a warning to avoid the subsequent legal liability. The existing concept of privacy and current privacy legislation are subject to the physical space. Privacy concerns and personal relationship in cyberspace are different from those in the real world. It might be required to reform the evolving privacy concept to reflect the nature of cyberspace having no walls, floor and ceiling and "shallow friendships" on social networking sites. This paper will examine the reasoning behind these decisions with respect to privacy issues on social networking, and propose solutions to privacy protection in cyberspace.

8,500원

 
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