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
제39호 (8건)

지식재산권 가치평가와 경쟁법 - 합리적인 특허가치 산정방법에 대한 시론(試論)적 고찰-


한국지식재산학회 산업재산권 제39호 2012.12 pp.1-46

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IP valuation is a fundamental foundation for the purpose of enhancing the IP based transactions. Basically the valuation tool for the IP has to be same due to the very nature of value of goods and services, and even the valuation of the Corporate control. However the more homogeneous the target asset will be, the more easy to be assessed. To the contrary the rare the number of transactions occurred, the more difficult to assess due to the difficulty of founding a benchmark. In this paper, I try to show that the difference of the price and value together with the valuation methodologies such as income approach, market approach. Income stream has to be the basis point of valuation of the asset to seek for the reasonable value of the asset intrinsically. In valuing the IP, market approach could be used as is the same case with the valuation of other asset. In this cases similarly situated royalties under similar conditions could be a good reference for finding the reasonable royalty rate(“r” in this paper). However it is not that common to find this sort of royalty rate. Often times, we have to rely upon any other ways of valution approach to find resonable royalty(“R” in this paper). Given this assumption, I try to show that the Geogia-facific test using Geogia-facific 15 factors and Panduit test using 4 criteria originally developed by US Courts in applying 35 U.S.C.§284 to calculate the damages could be the variables for valuation of IP rights.



저작인격권 남용의 방지에 관한 연구 - 동일성유지권을 중심으로 -


한국지식재산학회 산업재산권 제39호 2012.12 pp.47-90

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The purpose of this article is to find out a way in Korea Copyright Act(KCA) to prevent the possible abuse of the author’s right of integrity. There are two issues that this article tries to solve; first, whether the author’s right of integrity is being abused, and second, what legal solution the court or the legislature can provide. To give answers to the issues, this article first clarifies the legal interest that the right of integrity should protect. This article shows that the author’s right, as Immanuel Kant who first provided the underlying philosophical foundation for author’s right, is the right of an author to communicate his thought to the public, and therefore that it is only when the public is confused about, or misunderstand, the author’s thought that the right of integrity is infringed. This article also shows that the late 19th and early 20th French courts also required the ‘change of the author’s thought’ for the infringement of the right of integrity in the same vein with the theory of Kant. Current French courts also show the same attitude to the infringement of right of integrity, especially with regard to utilitarian works and parody works. This article argues that the KCA provides right of integrity far beyond the extent that is necessary for preventing the public from misunderstanding an author’s thought. This excessive protection raises the transaction costs of utilizing copyrighted works in an unjustifiable way, and turns the exercise of the right into an abuse of the right. To prevent the abuse of the right of integrity, this article argues that anti-trust regulation and the abuse of right theory under the Korea Civil Act have their own limitations. Finally, this article proposes an amendment to the KCA that requires the ‘misunderstanding of the author’s thought’ for the infringement of right of integrity.



프로그램의 특허성 인정과 쟁점


한국지식재산학회 산업재산권 제39호 2012.12 pp.91-128

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The importance of software is stood out in these days to face smart times being able to contact information and service etc more conveniently and simply according to swift development of information communication technology. Although this program had protected by Copyright Law, program will be specified to invention of object and will be protected to patent in Patent Law lately. It is purpose to protect "idea of program" not theoretically protected in the Copyright Law in the Patent Law. However protect object being patent invention substantially business-transacted is to be program being identical with Copyright Law, protect object exerting prohibited act or exclusive right relating to exercise of right can be regarded to be program being identical with Copyright Law. Eventually it can be regarded that these laws have problem being against protection system. For instance protection system of program according to Patent Law comes to the fore confusion on protection way and cost problem according to double protection, and problem falling-off development desire according to overprotectiveness of program in which patent right is allowed, and accordingly careful review is requested in protection system in the Patent Law.



한ㆍ중 FTA 체결을 위한 양국의 특허 및 상표법의 비교 - 주요쟁점을 중심으로 -


한국지식재산학회 산업재산권 제39호 2012.12 pp.129-174

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Paris Convention for the Protection of Industrial Property was signed in March 20th of 1883 where 174 countries have ratified the treaty as of January 17th 2012 including South Korea and China. This convention provides several measures for the protection of industrial property such as; fair treatment for both domestic and foreign applicants in patent application, recognizing the principles of priority rights, and principles patent independence, etc. These measures have been contributing in the promotion and harmony of the intellectual property system of each country. Since the 1990s, the characteristics of international efforts for the protection of the industrial property would be employing the ‘Multilateral negotiating approach’ such as the WTO/TRIPs. Efforts for harmonizing and unifying the intellectual property system of countries have been an important agenda in various international treaties such as the F.T.A. These international agreements define the principles of §3①, National Treatment, §4, MFN: Most Favored Nation Treatment, and minimum protection, exhaustion of rights. F.T.A. especially is an agreement that is setup between two countries. Sometimes this enables tighter measures for the protection of industrial property. Therefore such regional negotiating approach has been gaining attention recently as means of improving each country’s patent system. China is a country with a second largest economy in the world as well as one of the largest trade partners of South Korea. It is no doubt that setting up an F.T.A. with China will bring tremendous opportunities for South Korea. However, this also means that both South Korea and China will have to work together because there are differences between each country’s intellectual property systems. Such difference could negatively affect South Korean businesses’ expansion into China. The F.T.A. between South Korea and China should be an opportunity to overcome the differences in the system between the two countries that could bring mutual benefits for both. This paper will study the possible mutual cooperation between South Korea and China for the improvement of the intellectual property system.



특허 무효심판의 제척기간 - 상표 무효심판의 제척기간과 비교하여 -


한국지식재산학회 산업재산권 제39호 2012.12 pp.175-226

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Until the Korean Patent Act was amended in 1990, it had stipulated that any interested party could not file an invalidation trial after 5 years of the registration date. In the beginning, the Patent Act did not have any limitation in the subject-matter of the exclusion period, but it greatly narrowed the scope of the subject-matter and finally eliminated the exclusion period in the current Patent Act. Even though the Korea Patent Act of 1961 ~ 1986 stipulated the exclusion period, the Korean Supreme Court has not been coherent in adopting the exclusion period. However, the Korea Trademark Act has stipulated the exclusion period without great difference in the scope of the subject-matter. The Supreme Court also has strictly adopted the exclusion period to trademark cases. The exclusion period of the trademark law is needed to protect both the trust of the owner of a trademark and the consumer confidence of the product having the trademark, and preserve a sound trade order. The exclusion period of Korean Patent Act of 1960s was to foster and encourage investment considering the extremely bad industrial and economic circumstances. The exclusion period of the Korea Patent Act in 1980s restricted the subject-matter to an invention or a device published in foreign countries. Considering the purpose and revision history of the exclusion period in the Korea Patent Act, Supreme Court 63hu45 decided 22 October 1964 (a partly disclosed right) and Supreme Court 81hu56 decided 26 July 1983 (a whole disclosed right) made a mistake by neglecting the stipulation of exclusion period designated in the Patent Act of those days. These appear to be the result of the consideration of the industrial and economic circumstances. The two decisions, however, provided a rational standard for the confirmation of the scope of a patent including a prior art.



특허법원의 관할집중 : 미국연방관할항소법원(CAFC) 30년 경험의 시사점


한국지식재산학회 산업재산권 제39호 2012.12 pp.227-283

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Currently the Korean government is more than ever seriously and positively considering the idea to consolidate the patent infringement case appeal jurisdiction into the Korea Patent Court. In discussing such jurisdiction consolidation, it will be worthwhile to analyze thirty year experiences of the U.S. Court of Appeals for the Federal Circuit (CAFC), which in 1982 achieved the same consolidation. There have been a few Korean articles which evaluated success or failure of CAFC. However they were presumed to be biased because of writers’ background or organization. Therefore, this paper randomly selects 24 recent U.S. articles which evaluate CAFC. Objectively analyzing the 24 articles, and then the author of this paper concludes: (1) none of the 24 article define CAFC as a failure, (2) some articles criticize formalism of CAFC, (3) the jurisdiction consolidation of the Korea Patent Court could be more successful than that of CAFC, (4) jurisdiction consolidation on the 1st instance level is also necessary, (5) the success of the expanded Korea Patent Court will much depend on expertise of judges.



국제법상 미승인국가의 법률적용에 관한 고찰 - 북한 저작물의 법적 보호를 중심으로 -


한국지식재산학회 산업재산권 제39호 2012.12 pp.285-322

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Article 3 of the South Korean Constitution refers “the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands”. In accordance with this Article the South Korean Judiciary has regarded the territory of the North Korea as a part of South Korean territory and concluded that South Korean copyrights laws may be applied to North Korean literary works. In other words, South Korean Constitution does not allow any other kinds of sovereignty in the Korean peninsula except the sovereignty of the South Korea. Furthermore, the South and the North Koreas do not recognize as a “State” with each other. Therefore, any kinds of legally binding documents including treaty or agreement have not been concluded between South and North. Therefore, as mentioned above, the South Korean judiciary holds the attitude which South Korean civil laws and copyrights laws may be applied even at the North Korean territory. Nevertheless, it can’t be denied that there are substantial or factual difficulties or limitations for a South Korean authority to enforce its protective measures under the South Korean laws at the territory of North Korea. Regarding these factual difficulties or limitations, the attitude of the South Korean judiciary as referred above seems to be paradoxical. At the same time, there is no any legal or substantial guarantee for the copyrights of South Korean literary works at the territory of the North Korea. Concerning this issue, the Japanese judiciary rendered its judgments which it is not necessary to protect the copyrights of literary works of the unrecognized State: the North Korea, although the both (Japan and the North Korea) are the State parties of the Bern Convention. Because recognition should not be inferred from the fact that both states are parties to a multilateral agreement. This attitude of the Japanese judiciary seems to be important for the South Korean judiciary to deal with “the copyrights of North Korean literary works”. Because the South Korean and Japan the both do not recognize the North Korea as “a State” under international law. Regarding such an attitude of Japanese judiciary, it would be desirable for the South Korean judiciary to deal with this issue which restarts a negotiation with the North Korea to prepare an effective and substantial measure to protect the copyrights of the both, based upon Inter-Korean Basic Agreement (not a treaty under international law) and its annexed understandings, rather follows a rigid approach to this issues as referred above. Additionally the special relations between South and North Koreas: not a formal relation between States rather but a sui generis should be regarded in such future negotiation not to breach the Constitutional Law of the Republic of Korea.



애플사 대 삼성전자 사건에 비추어 본 트레이드드레스의 법적 보호 - 한국과 미국에서의 보호요건의 비교를 중심으로 -


한국지식재산학회 산업재산권 제39호 2012.12 pp.323-374

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World-wide litigations between the two companies of the most prestigious smart-phones makers, Apple v. Samsung, have attracted international attentions. The decisions delivered by the courts, however, are not fully consistent, those of the U.S. and the Korean Courts being on the two extreme sides. One of the main differences is regarding the protection of trade dress about smart-phones and tablet PC's. Trade dress can be protected within the system of the intellectual property law in Korea as well as in the United States. In the U.S. it can be protected as design patents and/or Federal Trademark Law irrespective of the registration of the marks, while in Korea it can be subject matter of Design Protection Act, Trademark Act and the Unfair Competition Act. For the trade dress with acknowledged distinctiveness, they can be protected as registered and/or unregistered trademarks in the U.S. while they can be protected either as registered trademark under the trademark law or well-known sign under the unfair-competition law. Doctrine of functionality which is well established and consistently applied to restrict the scope of trademark is hard to be found to the cases on the trade dress. The doctrine does critical role to determine the boundary of the scopes of patent and trade mark, so the introduction of the doctrine and the application should be affirmatively considered. The confusion of trademark generally has been interpreted to mean point-of-sale confusion while post-sale confusion has not been expressly acknowledged in Korea. The ultimate goal of the trademark protection is the good-will of the merchants. Since the good-will of the merchants can also be damaged by the post-sale confusion not only by the point-of-sale confusion, the post-sale confusion should be considered affirmatively. In the U.S., anti-dilution provisions are applied without discrimination to the registered as well as unregistered trademarks; the provisions are applied only to the unregistered well-known signs so the registered trademarks are immune to the application of anti-dilution provisions.


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