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Since the Orange-Book-Standard decision(Az. KZR 39/06) was issued on May 6, 2009 by the Federal Court of Justice of Germany(German: Bundesgerichtshof, BGH), a series of recent smartphone-related disputes in many regions and countries have concerned a right holder’s ability to obtain injunctive relief for putative infringer’s infringement of FRAND- encumbered Standard Essential Patents(SEP). There is a decision from the U.S. ITC that if a putative licensee refuses to pay what has been determined to be a FRAND royalty, or refuses to engage in a negotiation to determine FRAND terms, such a refusal could amount to a constructive refusal to negotiate. The Japanese IP High Court similarly issued a decision that an SEP holder can seek injunctive relief against an unwilling licensee though the IP High Court refused to issue a preliminary injunction against Apple in a suit between Samsung and Apple involving SEPs. On the other hand, there are recent decisions from EU Directorate-General for Competition opining that the enforcement of SEP-based injunctive rights could constitute a breach of competition law under certain circumstances in the case of Samsung Electronics and Motorola investigations. In the aftermath of Orange Book Standard, the FRAND defense seemed to be tested successfully in court at least in Germany. But European commission disagreed with that. On March 21, 2013, the District Court of Dusseldorf referred five questions to the Court of Justice of the European Union(“CJEU”) concerning the availability of remedies to the SEP holders. It will be a key point whether CJEU interprets the patent right of standard-essential-patent owner as a proprietary right in the context of traditional patent law or does the enforcement of the right as an abuse of dominant position like a EU commission. Reaching final decision would take time because of the burden which the decision will heavily influence on each court of member states. The point CJEU should contemplate before rendering the final decision is to stick a balance between the unfairness that can cause decrease of incentive to innovation by excluding the injunction right and consequently causing reverse-holdup and the unreasonableness that results in royalty payment for actually invalid patent by forcing the implementer to reserve the right to challenge through unconditional offer.
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It is current situation that computer technology plays the more and more important roles in modern society and people dispute over the proper protection of core software for computer technology. It is also current status that the protection plan of the patent law is need to be discussed along with globalization and internationalization of the law together with matter of actual profit as patent law regarding program that has been protected by existing copyright law. It is obvious that it may influence on program-related industry positively in respect that the patent originally promotes technology innovation and gains the investment profit for technology development through exclusivity. It is also clear that the patent may hinder the market activities as it weakens the competitiveness and there is a concern the restriction on technology innovation may be brought due to excessive protection. So, it is required to review what the most adequate protection method is minutely regarding the protection of new technology. So, this thesis was willing to pay attention to the programs that are protected by the patent law in Korea. It was willing to research the plan that can establish the more effective protection system by analyzing the tendency and precedents of protecting the programs in Japan out of IP 5 countries after grasping the problems of protection system of Korea. It is needed to discuss the proper protection plan that can be applied to Korea by analyzing the patent law and inspection guide of Japan that shows the similar revision of patent law in Korea. Especially, in order to judge the patentibility of program invention thoroughly and distinguish it from the programs of copyright, it is necessary to consider the plan that stipulates the object to be protected by patent law. Furthermore, it should be considered in the inspection stage so that the patent can be granted only for the more strict and sophisticated invention when considering recent international trends regarding program invention. That is, precise supplementation of regulation with aggressive requirements is required. Now that the problem of insufficient patent is not limited to program only, the patent right should be granted only for the invention that has the definite value for protection by strictness for patent investigation and drawing up the statement strictly as thorough patent management that corresponds to exclusive protection. Technology of program evolves today, but it will be impossible to create the perfect law that specifies and prepares for the programs to be appeared now and in the future. But, it is important to establish the protection environment of programs to better status and seek for the unique direction of positive change. It is the time to have the institutional and policy concern to establish longer-term and macroscopic protection law system regarding newly-introduced concepts not law revision by instant need.
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Article 128 of the Korean Patent Act, which purposes to strongly protect a patent right, prescribes several methods to calculate damages caused by patent infringements. Nonetheless, some have argued that a patentee does not receive proper compensation in an actual patent infringement lawsuit. This paper, in order to enhance effectiveness of the damages calculation methods, suggests some proposals for proper interpretation and/or amendment of Article 128(5) as the followings. First, the first sentence of Article 128(5); which is the meaning is unclear. Moreover, it is not utilized in practice. Then, This paper in order to remove unclearness the first sentence of Art. 128(5), and improve the application in practice, suggests some proposals for proper interpretation and/or amendment of the first sentence of Art. 128(5). It is natural that a patentee claims damages for lost profit or infringer’s profit that is excess of royalty. Royalty equivalent as the minimum damages, Patentee can choose to calculation of damage by lost profit or infringer’s profit. If, this article is just a regulation of caution rule, have no meaning, this article should be deleted. Meanwhile, the first sentence of Art. 128(5) could be interpreted as royalty equivalent as the “minimum” damages, it is necessary to amend Art. 128(4) in order to clarify such meaning in the provision. The first sentence of Art. 128(5) could be understood as allowance of mixed-calculation. Hence, it could be interpreted that mixed-calculation is allowable under the Korean Patent Act. Since the judicial review is available without enactment of a mixed-calculation, there is no need of separate legislation for it. Second, the Article 765 of the Korean Civil Law arranges unusually the wrongdoer’s right of claim for reduction of damages. On the contrary, the second sentence of Art. 128(5) enables that if a patent infringement act is a excusable negligence one, it is possible to reduce the damages without considering the economic situation of the patent infringer. Considering that an act of infringement occurs as his or her business and, as a result, the infringer makes any kind of profit, such reduction theory should be applied more strictly in a patent case. However, the Patent Act provides more alleviated reduction theory comparing to the Civil Act. In that sense, such provision of the Patent Act should be deleted or at least amended. If the theory to reduce damages for excusable negligence is needed to be maintained in the Patent Act, such logic should be applied to the theory to increase damages for gross negligence under the Patent Act. If the infringers with excusable negligence must compensate all damages, then willful of gross negligence infringers must compensate enhanced damages. That is, there is a need to distinguish excusable negligence and gross negligence.
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In the United States, fair use doctrine exempts fair users from liability from certain modest uses of copyrighted work. Courts have considered all of the four statutory “fair use factors” in Section 107 of the Copyright Act in order to determine if a particular use of copyrighted work falls within the parameters of fair use, or is instead copyright infringement. These factors are the (1) purpose and character of the use; (2) nature of the work; (3) amount and substantiality of the portion used in the newly created work; and (4) effect of the use upon the potential market for or value of the copyrighted work. At this present, the fair use doctrine is understood as an affirmative defence raised by a defendant in the infringement lawsuit. By the way, in Folsom v. Marsh in 1841, the court first had considered fair use doctrine as the factors for judging copyright infringement. The test for copyright infringement now requires a valid copyright in the original work, actual copying, and substantial similarity between the original and the copy. It does not fully examine all of four factors of fair use since it has become an affirmative defence. The policies of copyright system in Korea and all over the world have expanded the exclusive rights for copyright holders, and strengthened the regulations to prevent the copyright infringements. However, this trends of policies causes the concerns about disturbing use of the fair use doctrine and interfering with cultural development. There has also been increase of need for “diversity of expressions” which is the heart of freedom of expression as development of the Internet and digital technologies. This paper insists that courts should consider fair use factors when they determine judgement of copyright infringement at outset. This approach strikes not only a balance between the interests of the right holders and interests of fair users, but also reasonably achieves the ultimate goal of copyright law, development of culture and relevant industries.
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Uber is a mobile-app-based transportation network. Uber provide a service which allows consumers to submit a trip request, which is routed to crowd-sourced taxi drivers. It is sometimes more useful than Taxi, so Uber expanded internationally. Meanwhile, Uber meet with resistance. While taxi drivers are regulated by administrative regulation like the license system, drivers using Uber app are able to avoid some regulations in providing similar service like taxi. By ignoring the law, Uber is putting at risk the livelihoods taxi drivers who drive safely and follow the rules. some lawsuits filed against Uber in several countries for unfair competition, because Uber took competition advantage by breach of law against competitors who follow the law. Especially, Berlin district court make a decision Uber is an unfair competition because Uber violated PASSENGER TRANSPORT SERVICE ACT. There are many arguments about Uber’s unfair competition in the world but there is no arguments about Uber’s unfair competition in Korea. The Korean Unfair Competition Law(KUCL) has recognised only ten types of acts as unfair competition. When some acts outside of KUCL are regarded as unfair competition, they are just de facto unfair competition acts. They are allowed, if they are not prohibited by civil law(tort) or other special laws. Ten types of acts in KUCL protect mostly an individual competitor. KUCL do not aim to protect consumer and public interest by comparison with unfair competition law of foreign country, for instance Germany. Unfair competition acts which infringe the consumer or public interest are not covered by KUCL but they exist as de facto unfair competition acts outside of it. A typical unfair competition act infringing public interest is the breach of law. The breach of law means that the violation of a law is used for method of competition. In comparison with EU countries and US, the breach of law has been recognized as unfair competition. In particular, the breach of law was codified Article 4 Nr.11(Rechtsbruch) in Unfair competition Act of Germany. According to Rechtsbruch, the infringement of regulation outside of Unfair competition Act of Germany can be considered as unfair competition if the infringed regulation is intended to regulate market conduct in the interest of market participants. But it is just de facto unfair competition act in KUCL. Tradespeople violates provisons outside of KUCL to gain an advantage in competition. This unfair competition infringes public consensus that competitor must compliance with all rules and be lawful. It is general requirements for commercial behavior. If the breach of law as an unfair competition happens frequently, public oder is threatened in the worst case. So, KUCL have to regulate the breach of law.
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In the past, only material assents that a company owns were protected by property rights, however, these days, intangible intellectual property becomes more and more important. Since it costs a lot of expense and time to develop this kind of intangible intellectual property, some immoral firms with malice choose to steal related technologies from other companies instead of investing time and money in new technologies. The victim company whose technology has been stolen not only suffers a technical loss, but also lots of money loss and is put in danger of going bankrupt at worst. In case of major companies with various technologies and huge capital, technology leakage causes only financial losses, whereas it can finally result in bankruptcy to small and medium-sized enterprises, because mostly they run the company depending on specialized single technology they have. This is why the protection of technology is necessary for small and medium-sized enterprises. In addition, large companies are equipped with capital and human resources to protect themselves from technology leakage, while most of small and medium enterprises are not. On this account, legal support to prevent technology leakage from small and medium enterprises is urgently needed. Also, governmental support is essential because technology leakage of small and medium enterprises definitely has an effect on national competitiveness as well as enterprise itself. The importance of technology protection of small and medium enterprises has recently come to the fore as a critical social issue and National Assembly has given weight to this issue and examined it carefully. Consequently, ｢Act on Supporting Technological Protection of Small and Medium Enterprises｣ is legislated on this May and becomes effective from November. Thanks to it, legal ground for systematical support at government level has been made to protect technology of small and medium enterprises. Reviewing domestic and foreign legislations and looking into present condition of technology protection of small and medium enterprises, this study suggests improvements of legal system to prevent technology leakage of small and medium enterprises as follows. First, more organized personnel management and compensation system should be introduced to prevent technology leakage caused by professional human resources who resign or change jobs. Second, several methods are mentioned to create new value using safe technology protected by legal system that prevents small and medium enterprises from technology leakage. Third, methods are discussed to settle a dispute prior to legal action in case of technology leakage from small and medium enterprises. Furthermore, plans are reviewed to reward a third party reporter who recognizes technology leakage and notifies it to related organization. Fourth, suggestion is made to increase the penalty for technology leakage of small and medium enterprises to arouse public attention. Finally, a designated organization should be responsible for technology leakage of small and medium enterprises as well as technology data submitted to government and public institution for protection. In addition, technology certification system for small and medium enterprises should be built to check the security condition on a regular bases to prevent technology leakage in early stages and damage insurance system to support litigation expenses and other financial losses in case of technology leakage should be introduced.
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