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
제42호 (9건)



표준특허의 효과적인 관리방안 - 표준제정기구의 역할을 중심으로 -


한국지식재산학회 산업재산권 제42호 2013.12 pp.1-42

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The primary objective of the Article is to achieve a good understanding of the relationship between standardization and patents, and provide recommendations on how essential patents should be selected and managed to establish an effective standard to spur natural innovations. The patent provides its holder with exclusive rights to prevent others from commercially exploiting the invention. This is the desirable incentive to invest in R&D, but causes negative effects on competition. Standards are open to the public to use freely and are vital for the diffusion of new technologies. Thus, “essential patents” included in a standard provide standard-setting organization (SSO) with a dilemma in that exclusive patent rights have become essential elements of a standard. In order to establish an effective standard, SSO must be aware of the following:(1) It is needed to encourage industry experts to participate in the SSO, because the lack of participation of experts results in a less-informed standards body and the adoption of an inadequate standard. (2)Standardizing on a patented technology is necessary when that technology is the best solution, because the extra effort in attempting to design around the patented technology may cause extensive inefficiencies. (3)Patent policies should define the scope of the intellectual property rights (IPRs) clearly. It should be determined whether the policies cover patents, trademarks and copyrights, whether they include both issued patents and applications pending, and whether they cover domestic patents and foreign patents. (4) Every essential patent should be included and declared. (5)Essential patents should be evaluated and adopted by their technical values and their importance to the standard rather than political behaviors by participants. (6)Patent policies and regulations should be enforceable and treated as contracts. (7) The FRAND conditions should be clearly defined. (8) The SSO should protect participants by defensive suspension against hold-up by non-participants. In addition, participating companies should recognize that participating in an SSO means that they assume legal obligations in accordance with patent policies and regulations. The government and courts also may help a SSO by suggesting IP guidelines or IPRs regulations.



우리나라에서 트레이드 드레스의 법적 보호에 관한 연구


한국지식재산학회 산업재산권 제42호 2013.12 pp.43-77

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This article is devoted to review the legal protection of trade dress in Korea. The Korean intellectual property laws do not know originally the concept of trade dress, which means that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that identify the source of the product to consumers in America. According to the American trademark law system, trade dress is protected as a form of intellectual property including trade mark and trade names. The concept of trade dress in Korea, in my opinion, is not suited to Korean Intellectual Property Law System. Because business signs have to be registered to Korea Intellectual Property Office in order to be protected as intellectual property in Korea. And business signs which do not be registered shall be well known in Korea to be protected by unfair competition law. In my opinion, forms which belong to trade dress are possible to be protected in Korean Trademark Law, Korean Design law, and Korean Unfair Competition Law.




특허침해 판단시 기능식 청구항의 해석


한국지식재산학회 산업재산권 제42호 2013.12 pp.79-115

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Functional claim uses the language of function to partially define the subject matter of an invention. The US Patent Act gives special treatment to a functional claim. According to 35 U.S.C. §112 ∏6, “An element expressed means-plus-function in a claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” However, the Korean Patent Act does not have a provision corresponding to 35 U.S.C. §112 ∏6. The Korean Supreme Court does not have a unified opinion on the interpretation of a functional claim in determining infringement. For example, some Korean Supreme Court Cases limit the functional claim to the embodiment in the specification but some Cases do not. I insist that the interpretation of the functional claim should be conducted to cover the corresponding structure, material, or acts described in the specification plus something obvious from the structure, material, or acts because the embodiment in the specification and something obvious from the embodiment are the parts which were made public from the functional claim. So the interpretation of the functional claim operates more like the reverse doctrine of equivalents rather than the doctrine of equivalents because it restricts the coverage of the literal claim language. However, the doctrine of equivalents should be used for the interpretation of a functional claim when the claimed function is not literally found in the accused product and the accused product was developed after the patent was issued.



모인출원에서의 정당한 권리자의 이전청구에 관한 연구


한국지식재산학회 산업재산권 제42호 2013.12 pp.117-148

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A patent application by an unauthorised applicant may endamage a true inventor. So many countries have rules and regulations regarding remedies for the true inventor. The true Inventor’s request for assignment among several remedies for the true inventor is the most appropriate measures. German patent law and the revised Japan patent law in 2011 have admitted the true Inventor’s request for assignment. Meanwhile, the revised American patent law in 2011(The Leahy-Smith America Invents Act, AIA) provides “Derivation proceedings.” An applicant for patent may file a petition to institute a derivation proceeding in the Office. The petition shall set forth the basis for finding that an earlier applicant as the inventor derived such invention from an the petitioner's application as the inventor and, without authorization the earlier application claiming such invention was filed. But Korea patent law does not admit the true Inventor’s request for assignment yet. It lacks proper protection for him. I think that the remedy is needed for the true inventor necessarily and hope for the introduction of the remedy under patent law reform.



중국 상표법 개정에 따른 우리나라의 시사점에 관한 고찰

이인혜, 이헌희

한국지식재산학회 산업재산권 제42호 2013.12 pp.149-193

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On August 2013, the People's Republic of China adopted the third amendment to trademark law. This new amendment law focuses on multiple measures to facilitate trademark registrations, further safeguard the fair and competitive market order, strengthening protections to exclusive trademark rights. This amendment law is more efficient than the previous one. To be more specific, the new law accepts multi-class applications, online applications system, and non-traditional trademark(but only sound trademark). Also, it changes that opposition procedure which limits the opponent of prior right cases from any entity to prior right owner of interested party. In some parts, legal clarity is substantially improved by this amendment with dividing into invalidity and cancellation system; defining the trademark use notion; establishing criteria for well-known trademark. In other parts, protection level on trademark is elevated and advanced stages, as the law refers the duty of good faith; enters into details about prior use rights; adopts the punitive damages and higher fine for violation. With this Chinese modified law, there are many similarities between Korea and China trademark law. In trademark application procedure, China changed applications system from single class to multi-class applications which Korea also adopted. Additional revision procedure is established without revision of commissioner in Trademark Office. It could be clear legal effects by division between trademark invalidation grounds and cancellation one, and by definition of trademark use. There are differences as there are such similarities. Enacting time limits on examination in Chinese law is worthy of notice, this can be affect reduction of backlogs. For this reason, China also statutes the limits on the opposition procedure. Especially it is noticeable protection provisions: punitive damages and increasing the amount of statutory damages(RMB 3 million). And it was strengthened the statutes on the duty of agent or representative of the person who is the owner of a trademark application. These changes could be affect two countries relationship, especially Korea-China FTA, RCEP, and TPP. And I hope this article be useful of having a strong tie between two countries.



인터넷환경에서의 상표사용을 중심으로 본 입법 예고된 상표법의 상표 사용 정의의 평가

오주연, 윤여강

한국지식재산학회 산업재산권 제42호 2013.12 pp.195-233

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In spite that a lot of commercial transaction is carried out on the internet, there is no definition of ‘use’ of trademark and service on the internet, which makes lots of problems. In addition, Korean Trademark Act do not have no definition of ‘use’ of service mark and apply the definition of trademark use. Recently, electronic commerce is boomed and there is an infringement by using domain name, Meta tag, keyword advertisement, and pop-up advertisement. Because there is a confusion on the concept of trademark use and service mark use, it is difficult to decide whether such an infringement of trademark or service mark is not suitably handled. To solve the problems, Korean government gives an advanced notice of revision of Trade Mark Act. In the prior-announced revision of Korean Trade Mark Act, there is new definition of trademark use. According to the definition of trade mark use, if there is an function of advertisement or indication of source by using a keyword of an trade mark in a domain name, it will be regarded as an use of the trade mark. As the same way, if there is an function of advertisement or indiction of source by using a keyword of an trade mark in Meta tag, keyword advertisement and pop-up advertisement, such an use will be regarded as the use of the trade mark. With the new definition of trademark use, it is more concrete to distinguish trademark use on the internet. Also the trade mark owner’s right will be more strengthened by using trade mark law to meet infringements, which are related to using the keyword of an trade mark as an domain name, meta tag, keyword advertisement and pop-up advertisement on the internet environment.



잠정적인 저작권계약체결제도에 관한 소고 - 독일저작권관리법 제11조제2항을 중심으로 -


한국지식재산학회 산업재산권 제42호 2013.12 pp.235-260

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The collecting societies in copyright law are monopolies. They control the copyrights over almost all works in their own realm. In almost every country, there are some kind of efforts to control over the abuse of dominant position in copyright market. In Germany, collecting societies are obliged by existing laws to set adequate conditions. The Copyright Administration Act (an act on the collecting societies; Urheberrechtwahrnehmungsgesetz) regulates their duties to administer relevant rights on equitable terms. The remunerations to authors is fixed in tariffs prepared by collecting societies. The adequacies of tariffs is reviewed by courts. The German Copyright Administration Act Sec. 11(2) stipulates: “If an agreement on the amount of remuneration for the granting of non-existence rights has not be made, the rights of use shall be deemed granted if the compensation in the amount of the recognized by the users amount to the collecting society paid and the amount that extend beyond the requirement of the collecting society under reservation payable to the collecting society or deposited in their favor has been.”Users can challenge the aduquacies of tariffs. Until the courts' final judgement, the geman approach gives tempory compulsory license to the user, by conditional payment or deposit of the controvercial amount. The german system acknowledges tentative conractual relationship with licensor. The german experiences are hoped to give some guidance to the korean legislations.



디지털 시대의 기술적 보호조치에 의한 저작권 보호의 정책 방향 - 한ㆍ일 비교를 중심으로 -


한국지식재산학회 산업재산권 제42호 2013.12 pp.261-302

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In line with the rapid growth of internet and computer, the demand of works on the internet has sharply increased and it thus appears that the digital environment has become the major environment of works. Consequently in order to establish any protection system of works on internet, both access control technological protection measures and copy control technological protection measures and maintaining related laws have been carried out in parallel. Then the two protection systems individually have a certain constraint in each effect owing to the characteristics of internet and the development of circumvention technique for technological protection measures. Accordingly while each protection system has been kept maintained since 1990’s, continuous efforts have been sought to protect the more effective copyright protection through mutual complements by way of legal protection with regard to technological measures. In this manner both Japan and Korea appear to keep a pace with international stream in enlarging the protection criteria for the technological protection measures and strengthening its protection. In principal access control technological protection measures, save its exception, is not affected by the restricting regulation of copyright property which includes general provision of fair use. Accordingly, access control technological protection measures may greatly harm the users’ rights and interests. The distribution of digital works on internet is vulnerable in the infringement of copyright property, and the technological protection measures in the trade of works on internet are inevitable. Moreover, in respect that the circumvention techniques are accelerated as rapidly as the advancement of protection technology, one can share in common the need to protect technological protection measures under copyright law, too. It is because no one can deny the fact that in our capitalism society the incentive of creation will stay maintained on the assumption of protecting the works properly. However, any excessive application and legal protection of technological protection may make the less use of works, hampering the development of culture. Therefore, the protection of technological protection measures is to be oriented to balance the rights and interest of the copyright holder with those of the user in order to best fit the purpose of copyright laws.



문화콘텐츠산업 관련 법체계 정립에 대한 고찰


한국지식재산학회 산업재산권 제42호 2013.12 pp.303-347

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“Contents Industry Promotion Act(CIPA)” has been, in fact, under control the Ministry of Culture, Sports & Tourism(MCST). Consequently, additional basic law has come to co-exist with the pre-established “Cultural Industry Promotion Basic Act(CIPBA)”, under which so far, cultural contents and digital cultural contents has been promoted. The revision also made the role of the former one unclear that has solely given base to other the subordinating specific laws including Game Industry Promotion Act, Music Industry Promotion Act. Basic Act for Development of Broadcast and Communication also contains legal ground for the promotion of contents industry, which shall be problematic in relation with CIPA. With respect to Intellectual Property Basic Act(IPBA), clear relations between the intellectual property and contents, and clear and definitive roles between Intellectual Property Committee and Contents Industry Promotion Committee, both are to be installed, need to be considered. CIPA contains mixed ranges of provisions acting as basic law and specific law, in which there is limit that provisions as basic law should be embodied in a specific law. In this regard, CIPA is required to establish a reasonable relations with specific laws. While CIPA is constituted primarily with provision of “programmed regulation”, CIPBA contains provision that is not represented in a specific law, so that no duplication is incurred and each are made up for among CIPA, CIPBA and other specific laws. Considering the concerns about conflict between MCST and Korea Communication Commission, the article 4 of CIPA seems to need revision in a way to secure that Basic Act for Development of Broadcast and Communication is consistent to the basic concept of CIPA. With respect to Intellectual Property Basic Law, IPBA is completely programmed regulation, CIPA is consistent with the purpose and basic concept of IPBA, no direct conflicts are expected. However, contents can be concluded in intellectual property, when planning policy involved, it is need to reconcile with intellectual property Committee. In particular, up on now the Minister of MISP (Ministry of Science ICT and Future Planning) takes on the management of business associated with digital contents. However, upon examination of the organization of Ministry of Culture and MISP, digital contents exclude digital “cultural” contents. In conclusion, the author argues that digital contents means information contents only. In other words, in the field of digital contents MISP should pursue the industry of multimedia contents excluding multimedia “cultural” contents; Internet-related industry; an promotion policy of digital contents distribution and user protection excluding digital “cultural” contents. On the other hand, the area of broadcasting and communications contents can problematically cause duplicative works with MSIP, KCC and MCST, especially, on their fields which associated with the production and promotion policy. Therefore, through amendments to the CIPA, a legal supplementation is needed on the legal application order of broadcasting and communications contents. For the days coming, legal environments need to be improved consistently in a way the relations among laws involved with contents industry promotion are clarified and optimized, from which participants around contents industry benefit from more supports and the consistent policies.


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