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
제13호 (11건)

특허실체법조약(안)의 특허대상 확대 여부에 대한 검토


한국지식재산학회 산업재산권 제13호 2003.05 pp.1-33

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In recent years due to the scientific and industrial growth in the fields of bio-technology and computer science, there are the numberous, and more difficult, normative questions concerning patentable subject matter. The controversy on the limits of patentable subject matter in Draft Substantive Patent Law Treaty(SPLT) is based on the diversity of the scientific and industrial advance of WIPO members. In dealing with patentable subject matter of SPLT, a great deal of members are affirmative for including 'all fields of technology', to comply with the Article 27 of TRIPs. However, only a few members uphold that patentable subject matter may be 'anything under the sun that is made by man' (as in Charkrabarty), whether the invention depends on the specific technology or not. With respect to WIPO legislating on patentable subject matter and its influence on the existing Patent Act of Korea, this article speculates five considerations for resolving the questions exposed in dealing with patentable subject matter in SPLT; patent policy for industrial development, social/economic issue, normative issue for invention provision, international trade issue, and patent law harmonization.



유전자 치료법을 포함한 의료방법 발명의 특허법적 문제 : 유럽에서의 논의를 중심으로


한국지식재산학회 산업재산권 제13호 2003.05 pp.35-71

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EPC Art. 52(4) states that methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body are not to be regarded as inventions which are susceptible of industrial application. The methods set out in Art. 52(4) are excluded from patentability as a matter of policy. This exclusion is not a new provision under the EPC. Before the EPC came into force, such methods were excluded from patentability under the national laws of many European countries. The policy behind the exclusion of such methods was clearly to ensure that those who carry out such methods as part of the medical treatment of humans or the veterinary treatment of animals should not be inhibited by patents. According to the intention of Art. 52(4) was only to prevent non-commercial and non- industrial medical and veterinary activities from being restrained by patent rights. Like any exclusion clause, Art. 52(4), first sentence, had to be narrowly construed, and should not apply to treatments which were not therapeutic in character or did not constitute a surgical or diagnostic method -a fact underscored by the statement in the second sentence that the exclusion from patentability did not apply to products for use in such methods. Genetic therapy uses purified preparations of a gene or a fraction of a gene to treat a disease. This can be done either by correcting the functioning of a cell in which a single gene does not work properly from birth or sometimes by killing a cell which is out of control. Therefor diseases such as cystic fibrosis, diabetes, Parkinson's, Alzheimer's, heart disease and cancer are all targets for gene therapy. Patents are not granted if the exploitation would be contrary to "ordre public" or "morality". Some patient and public interest groups argue against patenting of human genes on the principle that genes are in every person, belong to all, and their use should not be restricted in any way. However, by establishing an exclusive position, a patent provides an incentive to invest in research and development. Without patent protection, companies would not invest the large amounts of money needed to develop the use of genes and gene products for therapy. Any new discovery can be misused. That ist precisely why we need a set of rules and guidelines which ensure practices are used only according to ethical standards agreed upon after political, scientific and medical discussion. We also need much more public understanding and informed discussion, since in the long term this is the only insurance against misuse.



특허 수수료 감면제도의 비교법적 고찰


한국지식재산학회 산업재산권 제13호 2003.05 pp.73-97

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The Patent Act provides that certain patent fees charged by the Patent and Trademark Office (PTO) shall be reduced by 50 percent for any small entity and any independent inventor and so on. The purpose of this statute is to make obtaining and maintaining a patent less costly for those entities presumably least able to bear those costs. The ability to procure patent protection allows small companies to grow and compete in the marketplace. Therefore, it is important to make this protection available to these entities. However, unfortunately, this reduction system is not established reasonably at the beginning and necessary qualifications for this special status are not always clear and it causes the whole patent fee system to be complex. Further, the subjects and the objects of fee reduction are not coherent and constant. Their status may sometimes be used in ways with bad faith. Of similar concern is what happens when a foreign applicant claims small entity status and how treats it considering national treatment principles. This article discusses these problems of current fee reduction system such as the requisite qualifications for consideration, the subjects and the objects of fee reduction with a comparative perspective through examining the related reduction system of foreign countries such as USA, EPO, Japan and Germany. This article further suggests the desirable directions of current fee reduction system to be revised in the future.



特許權委託管理法制의 改善方案


한국지식재산학회 산업재산권 제13호 2003.05 pp.99-134

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For the management of IP, collective management of copyright has been very common, but not that of patents in our country. But, it takes a growing interests in collective management of patents because of the advantages of collective management, and recently our government has enacted and/or changed several concerned acts. But, in spite of these legislative improvements, there are some problems to be reformed continually, such as the relative absence of trust management agencies, the disorderliness of collective management agencies or TLO, etc. So, this article proposes the methods of reforming our current legal system ⅰ) to promote the use of trust management system, ⅱ) to merge and abolish concerned collective management agencies, ⅲ) to establish "a regional TLO" for the replace of current system that is one TLO per one R&D institute, ⅳ) to strengthen the function of "KISTI" which is the clearing-house of scientific, technological, engineering informations in our country, etc.



과학기술 발전을 위한 특허소송제도의 개선 방향


한국지식재산학회 산업재산권 제13호 2003.05 pp.135-200

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The Korea Patent Court was established on March 1, 1998 to review the decisions rendered by the Korea Patent Appeal and Trial Board. Since its establishment, the court has played important roles as a kind of social infrastructure for the developments of science and technologies in Korea. Five years has been passed since its establishment, and I believe that now is the time to review the roles that the court has played. Therefore, the purpose of this study is to review the roles that the court has played and the problems that the court has suffered, and to suggest my opinion to improve the present system for the developments of science and technologies. For this purpose, in reviewing the roles of the Patent Court, I approached the matters, not simply from theoretical legal aspect, but from practical aspect observing the Patent Court as a tribunal to resolve the disputes concerning science and technologies. I also tired to compare the system of this court to those courts in other countries established for the same or similar purposes, and to provide suggestions to improve the present system from the aspect of legislation policy. In this study, I firstly observed the roles that such courts as specialized in industrial property matters should play, secondly reviewed the roles that our Patent Court has played during last five years, thirdly tried to point out the systematic problems that the Patent Court has held since its establishment, and fourthly to improve the present Patent Court system, suggested to introduce the technical judge system in order for the disputes to be reviewed from scientific or technical view points, and to introduce unification of jurisdiction to unify the appellate level jurisdiction for the cases of the infringement matters on industrial property rights to the Patent Court. As conclusion of this study, I strongly emphasized the necessity that the Congress should pass as soon as possible the pending bill for the revision of the Act of Court System to unify the appellate level jurisdiction for the cases of the infringement matters on industrial property rights to the Patent Court.



지리적표시 보호의 법제화에 관한 연구


한국지식재산학회 산업재산권 제13호 2003.05 pp.201-244

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Geographical indications as a subject of intellectual property are characterized by a wide range of different concepts of protection. This study deals with the following issues: The historical background of geographical indications; description of the different existing systems for protection of geographical indications; and investigating of the problems existing in obtaining effective protection for geographical indications in Korea. This study aims to offer a better understanding of the legal issues related to the protection of geographical indications.



美國에서의 商品類似에 관한 判斷硏究


한국지식재산학회 산업재산권 제13호 2003.05 pp.245-257

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The likelihood of confusion standard is applied to measure the infringement of trademark rights and the registrability of marks. The "related goods" test being a facet of the ultimate and final test of likelihood of confusion, is applied by the Trademark Office under Lanham Act §2( d) in passing upon the registration of marks. With the abolition of the restrictive "same descriptive properties" test of the 1905 Act, the 1946 Lanham Act gave rise to the modem "related goods" rule under which the owner of a registered mark has protection against use of his mark on any product or service which would reasonable be thought by the buying public to come from the same source, or thought to be affiliated with, connected with, or sponsored by, the owner of the registration. To determine whether goods are so related that confusion is likely, one must canvass a number of factors, no one of which is determinative per se. Among these factors are the strength of the mark, the degree of similarity of the marks, the degree of closeness of the products, the likelihood that the senior user would expand, actual confusion, the defendant's motive and good faith, the quality of defendant's product, the sophistication of the buyer class, channels of trade and price ranges.



Why Unfair Competition Prevention Law Needs a General Clause Experiences from Japan

Christopher Heath

한국지식재산학회 산업재산권 제13호 2003.05 pp.259-287

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일본 부정경쟁방지법은 부정경쟁행위 일반을 규제할 수 있는 一般條項(general clause)을 두고 있지 아니하며, 단지 부정경쟁행위로서 금지청구를 할 수 있는 행위유형을 한정열거하고 있다. 일반조항이란 예를 들면 업무상의 거래에서 경쟁의 목적을 가지고 선량의 풍속에 반하는 행위를 한자에 대해서는 중지 및 손해배상을 청구할 수가 있다. 일반조항은 새로운 입법을 강구할 필요 없이, 새로운 유형의 부정경쟁행위를 포섭할 수 있는 장점이 있는 반면에, 운용방법에 있어서 법 원에 의하여 판결되기 까지는 무엇이 금지되는 행위인지 알 수 없으므로 오히려 경쟁을 위축시 키는 것이 아닌가라는 우려에서 일반조항의 도입을 미루고 있다. 또한 일본 부정경쟁방지법은 영업사법적 성격을 가져 소비자보호를 위한 입법으로서는 충분하 지 못하다. 동법은 부정경쟁행위에 대한 민사적 구제의 가장 유효한 수단인 금지 및 예방청구권 을 영업상 이익이 침해된 자 및 침해될 우려가 있는 자에 한정함으로써 독일처럼 事業者團體나 消費者團體에게, 나아가서 스위스처럼 消費者에게도 禁止請求權 등을 인정하는 법제에 비하여 소비자 보호가 미흡하다. 오늘날 소비자 보호의 필요성이 점점 높아져가는 점 및 부정경쟁방지 법의 기능 활성화라는 측면을 감안하면 一般條項의 新設이나 事業者團體 消費者團體 등에게 禁 止請求權을 인정하는 것을 신중히 고려하여야 할 것이다. 입법론적 관점에서 저자는 WIPO 모델 안 접근방법에 기초한 법안을 제시한다.



디지털 音樂著作物의 利用과 法的問題 : 스트리밍 서비스와 모바일 서비스를 중심으로

윤선희, 조용순

한국지식재산학회 산업재산권 제13호 2003.05 pp.289-326

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In recent years, established music works based on digital technologies have changed into Digital Music Works, which are available for a kind of digital features. Due to the development of transmission technology, Streaming and P2P, the digital music works have been distributing and duplicating. And with the development of portable communication stuffs, the music works become available for many mobile service area through mobile phone, for example ring back tone, ringtone. Therefore, the owner of copyright have the more chance of making profit by using the digital technology, but the possibility of infringement of copyright has been increased by far. After showing up a digital music works, their new forms, Streaming services, Mobile services have occurred some problems as follows; Firstly, using as the means of transmitting music in streaming service, the temporary storage has the problem whether the concept of traditional reproduction regulate it or not and how to regulate it in a case. In mobile service, with the development of mobile phone, ring back tone and ringtone tone service using a master are serviced. And because of them, the legal relationship are discussed among a owner of copyright, a owner of neighboring rights, and the contents provider who offered some contents to a mobile service after processing a master. The appropriate corresponds are needed in the domestic copyright law. For revising the copyright law, it should examine main countries' legislation trend based on the WCT, WPPT. But though the reform of law based on the above items, it could be difficult to the use and protection of works. So it needs the revision of established works related system and the introduction a new system.



인터넷상의 저작권 보호의 범위와 그 한계

全一柱, 趙誠鍾

한국지식재산학회 산업재산권 제13호 2003.05 pp.327-345

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Copyright law, at least at this time, appears to be the most important type of intellectual property protection applicable to the Internet. Copyright laws apply to works on the Internet and protect creative, original expression "fixed in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device". Copyright protection however, dose not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Copyright does not give its owners the right to sell or distribute works; rather it is the right to exclude others. Courts will probably eventually develop the notion of implied license in connection with the Web, but it is clear that there is some type of implied license granted by anyone who set up a web site and makes it open to the public. Such license would surely includes normal web activity such-viewing web pages, clicking on links, and seeing the web text on the computer screen. But there has to be limites. The copyright Act provides the public with a number of privileges against an otherwise possibly successful assertion of infringement. By far the most important of these privileges. In this writing, I focused on the characteristics of copyright infringement on line due to the spread of internet, the protection content of the present law and its limit and relief of the infringement and proposed its problems and solutions. The of this paper are as follows : Ⅰ. Introduction Ⅱ. A Scope of Protection of Copyright on the Internet Ⅲ. A Limits of Protection of Copyright on the Internet Ⅳ. Conclusion



公共部門의 技術移轉 活性化를 위한 法制的 硏究


한국지식재산학회 산업재산권 제13호 2003.05 pp.347-386

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This study focused on the legal considerations for developing systematic mechanism to enhance the applicable level of commercialization for the technologies which were developed by public financial supports. Actually, according to related reports, it was shown that the success rate of commercialization amounted to below 10% in terms of public research and development performances which were acquired by governmental institutes, universities and national and public research institutes. In political, technical and industrial viewpoints, this study basically described the technology transfer for research and development business operated in public sectors so as to develop systematic mechanism for improving low commercialization as described above. The study also examined legislative examples related to the technology transfer of each country in terms of comparative law, and presented our legal system as well as the reasonable legislative solutions so as to activate public technology transfer. The methods of the study can be described as follows: First, research literatures and reports are examined and arranged, which have been published so far. Those materials are also summarized on the basis of related data or informations which are submitted to various public institutes as well as summary questionnaire and the experience in technology transfer. Furthermore, the materials are used as a basic data for analyzing our legal system by examining laws and regulations related to technology transfer in foreign countries in terms of comparative law. The scope and content of this study can be classified into 3 sections: ⅰ) Generality for public technology transfer; ⅱ) legislative examples from each country in terms of public technology transfer; ⅲ) legal system and remedial direction for public technology transfer in Korea. Finally, the remedial direction for legislation to facilitate public technology transfer can be summarized into 5 sections as follows: Firstly, in terms of legal arrangement related to technology transfer. Secondly, in terms of research and development business. Thirdly, in terms of the support system for public technology transfer. Fourthly, in terms of the management system for public technology transfer. Finally, in terms of the right to execute the public technology transfer.


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