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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
제43호 (7건)
No
1

특허청구범위 해석에 있어서 일원론과 이원론에 대한 타당성 검토

조현래

한국지식재산학회 산업재산권 제43호 2014.04 pp.1-35

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There are two standards for claim construction: (a) claims must be read in view of the specification; and (b) It is improper to read a limitation from the specification into the claims. These two standards generally apply in the same way for both judging the requirements for patentability and for judging patent infringement. However, in some cases when the claim language is broader than the embodiment, these two standards are applied differently for judging the requirements for patentability and judging patent infringement. During judging the requirements for patentability, the Patent Office must give claims their broadest reasonable interpretation in light of the specification and it is improper to import claim limitations from the specification. Because the applicant has the opportunity to amend the claims during prosecution, giving a claim its broadest reasonable interpretation will reduce the possibility that the claim, once issued, will be interpreted more broadly than is justified. But during judging a patent infringement, it is proper to import claim limitations from the specification. This is because it is against the principle of the patent system to give a right to the invention that was not disclosed in the specification by the patent owner. Therefore, in some cases, claims may be construed in the same way for judging the requirements for patentability and for judging patent infringement. In some other cases, claims may not be construed in the same.

7,800원

2

관련디자인제도 도입의 의미 및 제도의 명(明)과 암(暗)

안원모

한국지식재산학회 산업재산권 제43호 2014.04 pp.37-73

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The associated design system was introduced with the revision of the industrial design protection act in 2013. At the same time, The similar design system was abolished with the introduction of the associated design system. However, the purpose of the associated design system is different with that of the similar design system. The purpose of the similar design system is to clarify the similar range of principal design. But the associated design system is to protect designs having the same design concept with the principal design. The associated design system is contrary to the purpose of clarifying the similar scope of principal design. The purpose of the associated design system is to reinforce the protection of a design owner. In other words, the associated design system is introduced to protect thoroughly the specific form of multiful, which is developed under one design concept. This study commented on what the meaning of its introduction is. It reviewed that if there are any changes according to the introduction of this system, what it is. Futhermore, it mentioned on merits and demerits of the associated design system in detail. Although this system was adopted for enlarging protection of a design owner, this also have many problems. So this study suggested several ways to solve these problems.

8,100원

3

상표법에 의한 제품 형태 보호의 문제점과 그 대응방안 - 비아그라 사건에 대한 전망을 중심으로 -

박영규

한국지식재산학회 산업재산권 제43호 2014.04 pp.75-122

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It is no doubt true that consumers are capable of recognizing the distinctive character of a product’s shape, to the extent that they may even be confused as to the origin of two identically shaped products which bear different word marks. Hence, registration of three-dimensional marks such as a product shape or its packaging should not be denied on the assumption that the public needs to be educated to see them as trade marks. Where the shape possesses special characteristics and the public perceives such shape as departing from the usual and expected shape of the category of the product concerned, it can neither be held to be part of the public domain nor denied registration. These special characteristics may be achieved through an application to the respective product shape or its packaging of two-dimensional features such as verbal or figurative elements and colours necessary to trigger a special impression produced by the three dimensional architecture. However, whether a product configuration mark can ever be considered inherently distinctive or must have acquired secondary meaning is somewhat vague and unsettled, as will be discussed herein. This article will discuss the level of inherent distinctiveness and acquired distinctiveness necessary to protect product configurations as trademarks. Finally, this article will provide guidelines and suggestions to help our 3-dimensional mark protection policy for a product’s configuration under current trademark law.

9,700원

4

TPP에서의 지적재산권에 관한 고찰

윤선희

한국지식재산학회 산업재산권 제43호 2014.04 pp.123-153

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This paper analyzes The Trans-Pacific Partnership(TPP) IP provisions and suggests the negotiation strategy. The TPP, also known as the Trans-Pacific Strategic Economic Partnership Agreement, is a trade agreement currently under negotiation that has its roots in an existing agreement between Brunei, Chile, New Zealand, and Singapore. The original agreement between the countries of Brunei, Chile, New Zealand and Singapore(P4) was signed on June 3, 2005. The TPP could be as one of the most promising region building efforts in the Pacific region. U.S. negotiators and others describe and envision the TPP as a “comprehensive and high-standard” FTA that aims to liberalize trade in nearly all goods and services and include commitments beyond those currently established in the World Trade Organization(WTO). However, there are a number of issues that must be resolved before an expanded TPP could become a reality. These issues comprise substantive obstacles in the negotiating process as well as procedural hurdles that must be addressed once an agreement is reached. PTAs, especially those with the U.S., often include provisions for enhanced intellectual property protection, going beyond the WTO TRIPS agreement’s requirements: so-called ―TRIPS-Plus. Typically TRIPS-Plus refers to IPR provisions believed to contain additional requirements than those contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), which is administered by the WTO. The P4 also imposes TRIPS plus obligations, although they are not as extensive as those found in U.S. FTAs. TPP contained TRIPS plus provisions that can undermine the flexibilities and disturb the delicate balance provided by the TRIPS Agreement.

7,200원

5

빅데이터에 대한 공정이용법리 적용에관한 연구 - 법경제학적 관점을 중심으로 -

정용균, 정진근

한국지식재산학회 산업재산권 제43호 2014.04 pp.155-195

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In recent times, Big Data is one of the hot issues across various fields of social sciences. It has a potential to contribute to the value creation in society. However, Big Data are collected from diverse kinds of data which includes private information. The Big Data is faced with the problem of copyright infringement. It is necessary to apply fair use doctrine to Big Data in order to rescue the big data industry from copyright infringement. However, recent technological and lawful changes provide uncertainties surrounded with protection of fair use in the digital arena. In technological aspect, DRM technologies attempt to contribute to make copyright infringement impractical or costly. What makes DRM controversial is its potential to over-deter lawful noninfringing uses of protected content. Furthermore, in the area of law, Digital Millenium Copyright Act(DMCA) of United States, prohibits users from circumventing Technology Protection Measures (TPM) employed by right holders in order to control access to their works and EU Directive establishes database right. Those changes result in the imbalance between the rights of users and right holders. Since the government, itself, has collected funds or disseminated so much of this data in former times, it was legitimate for the government to establish the rules of access and uses that apply. The Copyright Act of 1976 prohibits the federal government from claiming protection of its publications. On the other hand, in the age of database right, there is no evolving public domain substratum from which either research workers or second comers are benefited. The database right ignores the important distinction between ideas and the author’s expression. All those factors challenge the fair use doctrine of copyright. This study constructs an economics model of copyright based on Landes and Posner’s works to test the compatibility of fair use doctrine with big data. We decompose the costs of copyright into access cost and, administration, and enforcement costs, following Landes and Posner's copyright model. In digital age, it is easy to collect, assimilate and store the personal record. It forms digital personality which is distinct from existential personality. The ongoing discussion of information privacy is expected to enhances the access cost to copyrighted materials. In addition, DRM technologies significantly reduce the administration and enforcement costs, which is favorable to copyright holders. Accordingly, we consider to apply the fair use doctrine in Big Data. This study discusses whether fair use doctrine is applicable to Big Data and shows that the Big Data is compatible to transformative use based on fair use doctrine.

8,700원

6

영업비밀보호법과 산업기술보호법의 관계에 대한 연구 - 일원화 논의에 대한 비판적 고찰 -

김지영

한국지식재산학회 산업재산권 제43호 2014.04 pp.197-241

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Both Trade Secret Act an Act on Prevention of Divulgence and Protection of Industrial Technology(Industrial Technology Protect Act) are laws regulating the technology leakage. In particular, Industrial Technology Protect Act plays a major role in the protection of industrial technology, which was introduced in order to overcome the limitations of Trade Secret Act. However, it is claimed that the relation between Trade Secret Act. Trade Secret Act and Industrial Technology Protect Act have to be explained and they should be integrated. But the grounds that this two laws have to be integrated are just the limits of trade secret that showed in the process of the introduction of Industrial Technology Protect Act. Consequently, those grounds aren't appropriate to the basis of the integration between Trade Secret Act and Industrial Technology Protect Act. To the contrary, there is a big difference between them in the aspect of the concept factor of protecting objectives, the principle of protecting, the method of protecting, and the benefit and protection of the law. So, if they are chained as only one law, it will be a cohabitation. Finally, this paper asserts that the two laws have to be existed independently and respond to the leak of technology with helping each other.

9,300원

7

국가핵심기술 보호제도의 문제점 및 개선방안에 관한 고찰

홍영서

한국지식재산학회 산업재산권 제43호 2014.04 pp.243-282

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On 2006, the ‘Act on Prevention and Protection of Industrial Technology’ was enacted, and the protection and export prevention of ‘National Core Technology’ became possible. ‘National Core Technology’ means the technology which can have an significantly negative effect on national security or economy, if it leaks out, because of its high technological or economical value. Because the leakage of National Core Technology can bring about astronomical economic loss and weakening national competency, the legislation of the Act on Prevention and Protection of Industrial Technology was a very meaningful and necessary task. But, even though five years have passed since the ‘Act on Prevention and Protection of Industrial Technology’ was enacted, the protection system of National Core Technology cannot be established as a corporate culture, yet. Above all, the lack of consciousness about protecting National Core Technology and the lack of protection infrastructure are main reasons. And the regulation policy is another main reason because it is initiated not by domestic corporations but by government and investigative agency. Additionaly, there is no specialized agency for selecting National Core Technology rapidly and rightly. Also, It is hard for a company or an organization possessing National Core Technology to get extensive information of National Core Technology. These are the reasons why the cultural establishment of National Core Technology protection system was delayed. Therefore, this study aims to analyze these problems and suggest some improvement points. First improvement point is establishing practical supportive system for corporate consciousness raising and protection infrastructure expansion. And second point is adopting compensation system for voluntary report of National Core Technology. Third point is establishing a special agency for deliverating and deciding National Core Technology. Final point is online information system construction for National Core Technology.

8,500원

 
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