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
제11호 (9건)

전자상거래 관련 기술의 특허법에 의한 보호


한국지식재산학회 산업재산권 제11호 2002.05 pp.1-47

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The recent rapid development and diffusion of information technology (IT) are dramatically changing not only the methods to process enterprises' internal tasks, but also modes of trading and even the businesses themselves. Because of this, the number of patent applications for IT-applied business methods has been increasing. Since so-called "business method patents" can greatly influence various industries, even those that have not utilized the patent system so much in the past, they have attracted considerable attention from the press and various industries. This study aims to offer appropriate protection of patent right in the field of software related patents for the filing trend of "business method patent" applications.



WIPO의 특허법 통일화 논의와 특허법상 수용에 관한 검토 - 특허법조약(PLT) 제5조에 규정한 특허출원일을 중심으로


한국지식재산학회 산업재산권 제11호 2002.05 pp.49-85

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The Paris Convention for the Protection of Industrial Property was concluded in 1883 and is the first treaty for the international intellectual property system as we know it today. Under the Paris Convention, the inventor who wanted to obtain a world wide protection, or at least protection in a significant number of territories, had to deal with the patent offices of some countries only. All technical development and the computer science progress of the second part of 20th century make both the national application and the international application surprisingly increase, in order to protect their inventions. For filing international patent application with easy, the Patent Cooperation Treaty(PCT) concluded in 1970, makes it possible to seek patent protection for an invention simultaneously in each of a large number of countries by filing an international patent application. Under these two treaties, national and international patent application have regarded as the increased expenditure of time and money that results from the formal requirements and the various patentablity of their own laws. In the light of the harmonization of patent law, the Patent law Treaty(hereinafter PLT) which was concluded in June 2000 simplifies and streamlines procedures obtaining and maintaining a patent on a world wide basis. The main purpose of this Treaty is to make the patent laws of Contracting Countries revise for the harmonization to file a patent application more efficient, less costly and less time- consuming. This article focuses on the patent law harmonization and its adoption into Korean Patent law, in particular Article 5 of PLT(the filing date). Initially, this briefly introduces and touches upon the PLT and Substantive Patent Law Treaty(SPLT) which overview WIPO's patent harmonization on a worldwide level. Secondly, this describes that the filing date of PLT which is considered as the cornerstone of the treaty, is the basis of very simple requirements and maximum formalities requirements. And the work to adopt the filing date into Korean Patent Act is for the implementation of PLT based on the streamline and the harmonization over the world. Thirdly, this article concludes with a summary of possible future activities related to the PLT, SPLT and PCT(included the Reform of PCT) for harmonization of patent laws, and make a suggestion for our Patent Act which reflects upon these international activities.



비즈니스方法特許의 法的 問題 : 特許適格性과 進步性을 중심으로


한국지식재산학회 산업재산권 제11호 2002.05 pp.87-132

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In recent we have been concerned about Business Method Patent, that is, whether computer software is proper subject matter for patentability. In the United States, the recent State Street Bank v. Signature Financial decision appears to have put an end to the question. The decision repudiated two judicially created patent subject matter exceptions: the mathematical algorithm and the business method exceptions. Perhaps the court recognized the problem it had created where the manner in which a software invention is claimed determined patentability. Perhaps the court finally realized the distinction between mathematical formula and mathematical algorithms that had been lost on the court in previous decisions. Any computerrelated process or machine is patentable subject matter so long as it is applied to a practical purpose. Any invention, whether or not it contains a mathematical algorithm, could not represent a mere abstract idea if the invention had a practical and useful application. The question of whether a claim encompasses statutory subject matter should not focus on which of the four categories of subject matter a claim is directed to -process, machine, manufacture, or composition of matter -but rather on the essential characteristics of the subject matter, in particular, its practical utility. The European community has been dealing with the problem of software patentability for as long as the United States. In the early eighties, a new European patent act was passed that specifically rejected patent coverage for software. But in 1999, the EPO Board of Appeals ruled that claims drawn to software, either on a medium or by itself might be allowed by the EPO so long as the claimed invention has a "technical effect." They have apparently recognized the value and need of software patents to protect the industry against infringement. The Japanese Patent Law does not explicitly exclude computer programs from statutory subject matter. In order to be statutory subject matter, a computer program must show that it uses the physical laws of nature and is not simply the expression of an idea or of a logical process. The standard requires a close connection between software and the hardware of a computer. In practice, however, the Japanese Patent Office has liberally accepted all kinds of computer-related inventions, along the same lines as the U.S. Patent Office. Simply stated, any invention that is claimed in the form of a process, a machine, a composition of matter, or an article of manufacture is patentable so long as it has practical utility. Software is to be treated no differently than any other claimed invention. Perhaps now we can move on the other problems in Business Method Patent. The actually issues of software patentability such as considerations of non-obviousness.



식물특허 : 식물발명과 보호법규에 관한 제도적 검토를 중심으로


한국지식재산학회 산업재산권 제11호 2002.05 pp.133-164

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In Korea, plant varieties are protected by two different laws, the Patent Law and the Plant Varieties Protection Act. The former covers a-sexually reproducing varieties while the latter sexually reproducing varieties. In protecting plant varieties, the two Acts are different from each other in terms of requirements for protection such as inventiveness and adequate disclosure. The author argues that the dual protection system for plant varieties should be reformed. A critical problem of the present dual system is that since patents are available only for a- sexually reproducing varieties in particular by Art.31 of the Patent Law, breeders and discoverers of sexually reproducing varieties are excluded from patent system. The problem gets worse in the new technology environment where rapid development of the genetic engineering makes the classification between sexual and a-sexual reproduction obscure. In practice, breeders and discoverers of sexually reproducing varieties takes a detour to get patent, for example, by way of combining elements of a-sexual reproduction with that of sexual reproduction in their applications for patents. In principle, however, there is no self- evident reason why under the Patent Law sexually reproducing varieties are treated differently from a-sexually reproducing varieties. In fact, many countries have one patent system available for both of them. In short, the author argues that repealing Art. 31 of the Patent Law which excludes sexually reproducing varieties from patent system, legal protection system for plant varieties should be unified, or alternatively reformed in direction to its harmonization with the requirements of the Plant Variety Protection Act.



特許侵害에 의한 損害賠償


한국지식재산학회 산업재산권 제11호 2002.05 pp.165-187

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Patent right is the right to take advantage of invention exclusively. Patentee gets economic profit with his own invention and generally in case of infringement, he solves the problem caused, as he claims for damage to the court of law. Patent right, however, has difficulties not only to set the range of compensation, but also to ensure or prove data concerned because peculiarity of the right, limited term of patent and monopoly right differ from other normal rights. For the solution of these problems, although the article 128 of Korean Patent law regulates the calculation and estimation of damages, royalty, surplus and assessment of compensation price, it is necessary to interpret more dearly and make a conclusion through the analysis of cases due to the abstractive meanings. The study hereunder is focused on this article in order that the compensation for damages would be made properly in case of infringement of patent.



입체상표의 등록 및 보호요건에 관한 소고 : 상품의 형상이나 포장 형태의 입체표장을 중심으로


한국지식재산학회 산업재산권 제11호 2002.05 pp.189-237

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In general, a "3-dimensional mark" including a "product configuration" can be registered under trademark law if it is either inherently distinctive or has acquired secondary meaning. Further, it has also been protected by unfair competition law under some condition. 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. A functional design of a product, however, cannot be protected by unfair competition law or registered under trademark law under "functionality doctrine" regardless of how strong the consumer recognition therewith. This article will discuss the level of inherent distinctiveness and acquired distinctiveness necessary to protect product configurations as trademarks. In particular, how a product design has inherent distinctiveness to bolster arguments for the availability of trademark protection will be discussed by introducing Wal-Mart cases distinguished a container from the shape of the product itself. Also the established standards to determine functionality of a product design such as whether a utility patent discloses "the utilitarian advantage" of the mark;, whether advertising refers to the mark as utilitarian; whether alternatives are available to competitors; whether the mark is a result of "a comparatively simple or cheap method of manufacturing will be discussed through the examination of U.S federal cases. 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 and unfair competition law.



著作權登錄의 對抗力


한국지식재산학회 산업재산권 제11호 2002.05 pp.239-256

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This article reviews the priority among conflicting transfers and licenses¬with an emphasis on the copyright registration. Between conflicting assignees and licensees, the Korean Copyright Act gives priority to the assignee, having the copyright registration according to the first-to-file principle. But, as of a conflict between an assignment and a license, the licensee's interests cannot be adequately protected in comparison with the assignee's, However considerable, the license cannot prevail over the recorded assignment in almost any case. Considering the non-knowingness and vagueness of copyright registration in norms and reality, the Korean priority system is criticized not to reflect both parties' interests properly. Our priority system is advised to revise to strike an appropriate balance in fulfilling the purpose of copyright law. The filing system of non-exclusive license in patent law and the U.S. copyright registration system has been referred to as an alternative to the Korean system. This article proposes the Korean system to include the enlarged subject matter and the detailed contents via digital copyright registration.



온라인디지털콘텐츠산업발전법에 관한 검토 : 디지털콘텐츠 보호방안을 중심으로


한국지식재산학회 산업재산권 제11호 2002.05 pp.257-285

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The On-line Digital Contents Industry Promotion Act is the first legislation to promote Digital Contents Industry. This Act will take effect on and after July 15, 2002. This Act not only includes the basic infrastructure and supportive foundation but also protects the Digital Contents manufacturer with the prescription which stipulates, some of the prescribed behavior of using as unfair competition, to promote digitalization and to induce the investment of Digital contents Industry. In this paper, I will introduce various protection method that is examined in establishing process limited for Digital Contents protection problem, and also examines protection boundary. From now on, I expect this Act to carry out its role as the basic law in the field of the information technology.





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