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
제40호 (8건)

제조업체와 비실시특허권자의 특허가치 비교 - ITC 소송특허를 대상으로 -


한국지식재산학회 산업재산권 제40호 2013.04 pp.1-53

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In this study "Non-Practicing Patent Holder" or "Non-Practicing Entity" is defined as an entity or person who has a patent but does not practice the patent. Non-Practicing Patent Holders include individual inventors, universities, research institutes, or even companies which do not manufacture the patented product any more. Also, "Patent Transaction Entity" or "Patent Transaction Expert", instead of contemptuous word "Patent Troll", is defined as an entity which is engaged in the license business with patent portfolio procured mostly from third parties. Non-Practicing Patent Holder obviously includes Patent Transaction Entity. Considering the diversity of each Non-Practicing Patent Holder with respect to the procurement of patents and the enforcement of those patents, the legal or practical boundary of Non-Practicing Patent Holder or Patent Transaction Entity is not so clear and it makes manufacturers difficult to respond to the various Non-Practicing Patent Holder's activities. Then, this study analyzes empirically the value of patents owned by Non-Practicing Patent Holders to figure out if Non-Practicing Patent Holders' licensing activities are really blameful. For this purpose, all the patents proposed in the USITC litigation are listed first. And, those patents were divided into two groups, one patent group of 1,121 patents presented by manufacturing entities ("Manufacturer's Patent Group") and the other patent group of 125 patents presented by Non-Practicing Patent Holders ("Non-Practicing Patent Holder's Patent Group"). Secondly, several factors such as the number of claims, the number of backward citations, the number of forward citations, the effective duration of each patent after the date of litigation, the number of family patents, and the number of patents filed by inventors of each patent were selected to compare the value of those two patent groups. Such empirical analysis shows that there were no statistically significant differences with the value 0.05 between Manufacturer's Patent Group and Non-Practicing Patent Holder's Patent Group in the number of claims, the number of forward citations and the number of patents filed by inventor of each patent. However, there were statistically significant differences with the value 0.05 between two groups in the number of backward citations, the effective duration of patent after litigation and the number of family patents. The analysis shows that the value of the Non-Practicing Patent Holder's Patent Group is better than the Manufacturer's Patent Group in the number of backward citations and the number of family patents, while the Manufacturer's Patent Group is better than the Non-Practicing Patent Holder's Patent Group in the effective duration of patent after litigation. According to the results of empirical analysis in this study, it is found that Non-Practicing Patent Holder's patents are not trivial and even slightly better than the patents of manufacturing entities in some factors for empirical analysis.




Choi Heui Young, Shin Hye Eun

한국지식재산학회 산업재산권 제40호 2013.04 pp.55-96

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2011년 9월 16일 미국 오바마 대통령이 미국 발명법(“Leahy-Smith America Invents Act of 2011”)에 서명함에 따라 미국 특허법은 1952년 개정 이래 최대 규모의 개정이 이루어지게 되었다. 한국은 미국, 일본, 독일에 이어 미국 특허출원 건수 4위를 기록하고 있고, 2011년에 미국에 출원된 한국 특허출원은 28,474건에 달한다. 적지 않은 미국 특허출원 건수, 그리고 한미 FTA 결과 미국과의 교역은 보다 증가할 것으로 예상된다는 점 등을 고려하면, 미국의 새로운 특허제도를 이해하고 그에 따른 특허전략을 수립하는 것은 매우 중요하다. 이를 위해서는 새롭게 변화된 미국 특허법에 대해 살펴보고 지식재산권 전략수립에 반영할 필요가 있다. 미국의 특허법 개정과 관련하여 특히 한국 출원인의 관심을 끄는것은 선출원주의로의 전환이다. 미국 특허법 개정으로 인해 출원인은 보다 빨리 그리고 보다 간단하고 편리하게 미국 특허권을 취득할 수 있게 되었다. 그러나 2012.3.16일 이전 출원에 대해서는 여전히 선발명주의가 적용된다. 따라서 미국에서 선출원주의가 완전히 정착되고 새로운 시스템에 익숙해지기 위해서는 수년의 시행착오가 남아있을 것으로 예상된다. 본 논문에서는 미국의 선출원주의로의 전환이 한국의 출원인들에게 끼칠 수 있는 영향을 검토해 보고, 미국에서 보다 강력한 특허권을 확보하기 위한 대응방안에 대해 제안하고자 하였다.



지적재산법 체계화에 관한 연구


한국지식재산학회 산업재산권 제40호 2013.04 pp.97-135

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The traditional protection method for granting the rights is settled as the patent approach to protect ideas and the copyright approach to protect expression. The embodied idea which is protected by patent would be classified by two factors. One factor is how difficult to perform the revers analysis and the other is whether it is possible to determine the embodied idea has inventive step or not. In order to maximize the effectiveness of the patent system requiring huge social cost, I suggest that the subject matter of patent should be focused on the embodied idea that has the inventive step with difficulty in its analyzing reverse. Copyright approach is suitable for protecting the artistic works. Today, however, the copyright system is also triggered to protect modern works; in that case one should get the authorization to exploit the work when the person suggests the reasonable condition satisfying the fair trade practice. In addition, the subject matter to be protected by copyright is increasingly expanded to the output resulted from the investment. However, the public domain would be jeopardized when the non-creative works are protected by copyright only because of the investment. To solve this problem, it is required new concepts for the output incurred by investment separated from the subject matter of copyright. In this study, I suggest that the output resulted from the investment should be protected by the neighboring right system. It is hard to distinguish the modern works from artistic works, since Berne Convention states the copyright should be granted to all kind of original works without any procedure or formality. There is no alternative proposal other than to converse the other right after voluntarily waving copyright. To design such protection method is difficult, but the reform of the copyright system is desirable to bolster public interests. In conclusion, it is not justified to grant the intellectual property right unless the public interests are created. The legal protection system of intellectual property should be designed in the view of maximizing the public interest, not considering the natural right of the creator of intellectual property.



극적 저작물(dramatic works)에있어서의 표절 판단 - 서울고등법원 2012. 12. 20. 선고 2012나17150 판결과 관련하여 -


한국지식재산학회 산업재산권 제40호 2013.04 pp.137-181

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Munhwa Broadcasting Corporation (MBC) produced and broadcasted a total of 62 episodes drama called "Queen Seondeok" twice a week from May 2009 to December 2010. The drama was very popular and recorded the highest audience rating of 43.6%. In January 2010, the plaintiff A, a writer of musical script "Queen of Mugunghwa" with the main character of Queen Seondeok, claimed the plagiarism of his work by the subject drama and lodged the litigation seeking a recovery of damages due to the copyright infringement committed by MBC and the dramatists B, C at the Seoul Southern District Court. The issue of current case is as follows: Firstly, it is the issue of copyright infringement whether the dramatists B and C copied the script of the plaintiff A when they wrote the drama script (issue of actual copying) and whether the drama "Queen Seondeok" and the musical script "Queen of Mugunghwa" are substantially similar (issue of substantial similarity). Secondly, it is the issue of general unlawful acts whether the use of core components of script of the plaintiff without the consent of plaintiff amounts to a breach of contract or an illegal act. The first instance, case no. 2010KAHAP1884 at the Seoul Southern District Court denied both the copyright infringement and use of idea without the consent (decision delivered on 2 Feb 2012). However, in contrast to the decision of the first instance, the appeal, case no. 2012NA7150 at the Seoul High Court acknowledged the liability for both copyright infringement and general unlawful acts. The current thesis reviewed the legal principles of the subject case, and the validity and problem of applying the legal principles into the actual cases.



저작권법에서 사적이용을 위한 복제에 관한 소고


한국지식재산학회 산업재산권 제40호 2013.04 pp.183-224

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Thanks to the development of science and technology in the digital era lots of issues on copyright have been raised. In particular, many countries including European countries, Japan have tried to legally solve the problem concerning copyright on copying for private use under the digital circumstance, and resulted in newly establishing articles to criminally punish those who have unlawfully uploaded the copyrighted works on the internet. On the contrary, the Korean Copyright Act does not have any articles to regulate the offences against the Copyright Act even if such unlawful actions on the internet have often occurred in Korea as well. In the case "NAU Film" in 1998 the court made a judgement that the downloading for the private purpose cannot be regarded as lawful when downloaders would willfully know the fact that the file to be copied would infringe the copyright. From the legislative perspectives the article on copying for private use in the Korean Copyright Act should be debated on whether it should be revised, and compared with articles in question of other countries' Acts. In this regard we should meticulously debate on whether downloaders are needed to be criminally punished, when they get download while knowing the fact that others unlawfully uploaded a copyrighted work such as film, music file on the internet. In addition, the study on the reproduction for private use to evade technical protection measures should be made from the viewpoint of revision of Copyright Act as well.



웹하드 등록제에 대한 소고


한국지식재산학회 산업재산권 제40호 2013.04 pp.225-259

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The Telecommunications Business Act §22.2 was revised in 2011, so the special types of online service providers, whose main purpose is to enable different people to interactively transmit works, etc. among themselves by computers, should register before starting this P2P service business. For the registration, various copyright-protective requirement such as the performance evaluation of technological measure should be satisfied. Right holders had high expectations of it. But the situation of copyright protection has not been improved much since the full-scale enforcement in May, 2012. So called this Webhard Registration System is criticized for a regulation excessive but fruitless to protect Copyright. This paper analyzes the performance evaluation of technological measure of Korea Copyright Commission and the registration condition of Korea Communications Commission so as to find failure factors and alternatives.



등록 후 사용에 의해 비로소 식별력을 취득한 상표의 법적취급 - 하자치유의 인정과 무효심판 청구 제한의 필요성을 중심으로-


한국지식재산학회 산업재산권 제40호 2013.04 pp.261-312

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In case, the trademark having no distinctiveness at the time of decision whether to register and finally acquired a degree of distinctiveness(secondary meaning) required by Article 6, paragraph 2, after registration by using in the course of litigation, how such a registered trademark should be treated legally?The position of the Supreme Court is uncertain. Mainstream of Cases are in the position that such a registered trademark should be invalidated by trial. However, this position needs to be reviewed in a new perspectives, and by the Supreme Court case law in the opposite position. This paper is to review and claim the possibility of a correction of defects of the trademark registration even though it has a reason of invalidation at the time of decision to resister. First, invalidating the registered trademark and refiling it again cause too much discomfort to the trademark owner and is against in a economic perspective. As well as there is no merits to claim invalidation trial in fact because it still can be protected by the Unfair Competition Prevention Law. Furthermore, it meets the counter-interpretation of Article 5 paragraph 1 of Article 71 of the Trademark Act, providing that the loss of distinctiveness after registrations is to be the reason of invalidation. First of all, considering the nature of the animated feature of distinctiveness, sticking to the strict registration framework is contrary to the reality of commerce and mislead consumers into confusion that can lead to serious distortions and unfair competition causing result contrary to the purpose of the trademark law. This argument also can be supported by changing the perspective regarding the time of judgment to find and by adopting the concept of time acquiring secondary meaning. The time of judgment whether a trademark acquired secondary meaning needs not to be kept by the time of its registration, but could be by the time of trial decision or by the time of final judgement of a court according to the step of litigations. What's more important is the fact that the applicant must establish the time of acquiring secondary meaning of the mark concerned.



변리사법 개정을 위한 일본 변리사법 분석연구


한국지식재산학회 산업재산권 제40호 2013.04 pp.313-376

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The legislative definition of patent attorney in South Korea reflects the professionalism offered by the patent attorney, therefore the general job description includes illustrative examples of tasks carried out by specialists who protect the rights in invention, design and trademark. Overall, the scope of the patent attorney's work is defined by a general descriptive language which leaves ambiguity in interpreting the boundary and the limitations in the tasks that a patent attorney may handle in the Korean legal system. For example, a simple sentence in the legislative bill led to a legal conflict with other professions such as lawyers which brought a litigation all the way up to the Constitutional Court of Korea in expectations of defining a clear cut boundary. Furthermore, in today's high-tech market, more new jobs that perform similar or same work as patent attorneys are being added in the society. For example, brand management specialist, patent transaction manager, or patent information analyst share similar functions that were traditionally performed by patent attorneys. In addition, with the evolution of technology and with the emergence of a completely new market, patent attorneys are being demanded with new job functions that are different from its traditional roles. A lot of Korea's legislation relating to patent attorneys are unfortunately unable to accommodate such change in the market, therefore creating even more ambiguity in the boundary of patent attorneys. In comparison, after a series of amendment in the language of its legislative bill, Japanese law setup a clear cut definition in the functions that is to be carried out by patent attorneys in Japan. In addition, Japanese law introduced new meanings of educational requirements for patent attorneys in response to the evolution of technology and change of market. This paper will introduce the efforts put in by the Japanese government for reforming the Japanese patent system such as the continuing patent education system, government efforts to redefine the patent law system in accordance with the current court system, etc. The overall study of the general Japanese patent attorney system beginning with the Japanese Patent Attorney Act was conducted in hopes of setting and bringing a guideline to be used in the reformation of the Korean patent attorney system.


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