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
제15호 (9건)

民法上 情報의 地位


한국지식재산학회 산업재산권 제15호 2004.05 pp.1-25

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In this thesis I found the concept of Res under Korean Civil Act as an abstract legal concept encompassing tangibles and intangibles. Also, about the requirement to be Res, I pointed out that the traditional discussion which draws criteria from relational understanding with real right was not reasonable, and I separated such requirement into General requirement which is applicable to Res in general, and Special requirement which is applicable to object of ownership or obligation. I also considered that information can fall into the category of Res under Civil Act as long as it meets General requirement. However, I pointed out that whether information can be protected under the Law of Realty must need a social agreement after considering various viewpoints from like social, economic and technical aspects considering the special character of information.



산업표준의 포획에 대한 구제수단


한국지식재산학회 산업재산권 제15호 2004.05 pp.27-57

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A number of remedies may apply when patents on the subject matter of industry standards conflict with the full achievement of the purposes of those standards. Several nonpatent law remedies were applied in earlier cases of standards capture, including antitrust and contract-based remedies (fraud, equitable estoppel, and implied license). But These remedies have inherent limitations. So the application of the patent law-derived remedies of mandatory disclosure, compulsory licensing, and patent misuse-based nonenforcement to target certain cases of standards abuse by patent owners is to be considered. The sensitivity of the patent misuse doctrine to the public policy makes the misuse doctrine a viable and important tool to remedy abusive standards capture by patent owners beyond the marketplace impact-focus of antitrust analysis. In the case of a technology standard promulgated by industry, the key inquiry should be whether the patentee disclosed the existence of its patent or patent application to the standards-setting body while that body had an opportunity to select an alternative, nonproprietary standard. If the patentee's nondisclosure of its intellectual property rights to the standards- setting body was intentional, Courts should refuse to enforce the patent altogether under the patent misuse doctrine, thus depriving the patentee of any remedy, injunctive or monetary, for use of the patented invention. And compulsory licensing should be imposed if the patent owner refuses to license all users of the standard.



저작물의 디지털거래와 권리소진원칙


한국지식재산학회 산업재산권 제15호 2004.05 pp.59-120

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More works may be gradually circulated under digital environment in the future. When we consider this point, the existing first sale doctrine limited to the transactions of tangible things will need to be extended. This paper has examined the tendency of legislations, precedents and theories in the foreign countries such as the United States of America and Germany. In so doing, the author has tried to suggest the standard of the interpretation and desirable development direction of the first sale doctrine prescribed in the copyright act and computer program protection act. Regarding the first sale doctrine, i.e. the freedom of resale, there currently exists discrimination between consumers who bought a book or CD in bookstore or record store and consumers who bought the same thing through internet. A legal status of a consumer who bought music or movies through digital transmission has been weaker than the person who bought CD or videotapes. The person who bought lawfully music through Internet can record this to CD-R and enjoy the music. But, he may not resell the CD-R as a used music CD to third persons, even if he doesn't want to more enjoy the music. Supposing that more works become digitalized gradually and the sale will be realized not by the traditional transfer of tangible things but by method of transmission, is it desirable that such legal situation has to be continued in the future? Unfortunately, current laws of most countries and international treaties regard this discrimination as rightful. Resale and private reproduction have been recognised as a freedom of consumers of copyrighted works for a long time. Persons who bought a book or CD can reproduce this for private use and can resale this to third persons later. Nobody can criticise any copyright infringement towards such acts. This consumer's freedom has been established like a custom. This consumer's freedom should be guaranteed under digital environment. The transaction ability of copyrighted works that consumers bought once should be guaranteed whether these are in the forms of tangible things or digital forms. Simply because the existence form of works is different, its transaction ability should not be limited by eternal distribution right of the copyright owner. There has been controversies on whether the transmission of digital works should be classified into the category of reproduction right, distribution right or the right of communication to the public. By several reasons, international treaties and most national laws came to classify this act into the category of the newly introduced transmission right as a kind of the right of communication to the public. But classifying it into the transmission right as a kind of intangible rights has caused another problem about the application of first sale doctrine which is subject of this treatise. From such viewpoint that copyrighted works as intellectual creations are sold, it can not be denied that on-line transmission is similar to distribution. It is not important what way the consumer has purchased in determining as to whether the distribution right is exhausted or not.



지적재산권 중첩보호체제의 문제점과 해결원리 : 응용미술품의 의장법과 저작권법에 의한 중첩보호를 중심으로


한국지식재산학회 산업재산권 제15호 2004.05 pp.121-174

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The extension of copyright protection to works of applied art creates a special problem for the judiciary because these works incorporate elements which fall within the boundaries of both copyright and design law. For example, the possibility exists of an overlap between the protection afforded by a design and the protection afforded by a copyright in the area of works of applied art. This possibility exists because, by definition, both a design and a copyright theoretically could be used to protect the aesthetically pleasing aspects of a utilitarian article. This study aims to make a possible solution for the problem of a "Cumulation of Protection System"



특허풀 및 그 유효성에 관한 연구


한국지식재산학회 산업재산권 제15호 2004.05 pp.175-208

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A primary cause of the formation of patent pools and patent platforms is the issuance of overlapping patent rights to technology. The relation of patents to one another may be described as blocking, complementary, or competing. But for the settlement of the litigation or cooperation between the holders of those patents through such as a patent pool or a patent platform, the technology would be blocked by rival or competing patents. Patent pools are private contractual agreements whereby rival patentees transfer their rights into a common holding company for the purpose of jointly licensing their patent portfolio. The best example of a patent pool is the MPEG LA Patent Pool. A patent pool consolidate the patent rights into a central, independent entity, and establishes a method for valuing the patents and for dividing up the royalty stream generated through licensing revenues. Thus, a patent pool is suitable for solving the blocking problems of patents. However, a patent pool may not be suitable in the situation where over 100 companies own technology necessary for the implementation of standards, like 3G systems because 3G systems rely on complex systems, with multiple technologies, global reach from the very introduction of the first systems, and widely distributed patent rights. The solution for this problem is a patent platform. The 3G Patent Platform is the best and only example. The 3G Patent Platform is an industry defined approach for the evaluation, certification, identification, and licensing. of patents essential to the manufacture and operation of 3G systems. The lawfulness of some patent pools such as the MPEG LA. Patent Pool has been recognized by the US antitrust authority. Furthermore, the 3G Patent Platform has recently been approved the antitrust authorities of the US, EU and Japan. This article analyzes patent pools and deals with such topics on a patent pool as their lawfulness, structure, weakness and strength, function, and a licensing mechanism, a royalty structure, the evaluation of patents, essentiality of patents, the relationship between licensors and licensees, and etc. in patent pool. It also describes examples of a patent pool such as MPEG LA Patent Pool. Finally, it suggests that several factors be taken into consideration in deciding the lawfulness of each patent pool, which will be formed in the near future in Korea.



IP기반 SoC로의 발전과 배치설계권의 법적성격 변화 : 별도의 보호규범을 갖춘 저작권 기반 배치설계권


한국지식재산학회 산업재산권 제15호 2004.05 pp.209-251

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As technology of semiconductor have been developed, concept of right of design layout also should be developed. Especially, because semiconductor's sector is important on economy in South Korea and is rapidly changed as light speed, we should make our concern about the evolution of technology all the time. This will bring us legal stability on this area and layout designers appropriate interests. When we investigate into evolution of technology, we can find SoC(System on a Chips) environment based on SIP(Semiconductor Intellectual Property). SoC makes it possible a product smaller and power saving, and IP is consist of Hard IP, Firm IP and Soft IP. This makes that creation of virtual components and flexible circulation(reuse) of IP are possible. Therefore we should protect IPs as well as layout design. Usually, To make Soft IP, we use HDL(Hardware Description Language). Therefore we should protect computer program using HDL as well as Soft IP. This is different from protection of layout design. Whereas the protection of layout design is closer to patent system, protection of Soft IP and computer program using HDL is closer to copyright system. Therefore, we should create new legal system for Soft IP and VC(computer program using HDL) in a point of view of software's protection system.



데이터베이스 제작자의 법적 보호 : 현행 저작권법의 해석을 중심으로


한국지식재산학회 산업재산권 제15호 2004.05 pp.253-307

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This article is trying to interprete database provider protection clauses under the current Korean Copyright Act. In 2002 revision, the Korean Copyright Act gives some exclusive rights to database producer. The protection, notwithstanding creativity standard to enjoy copyright as a compilation work, requires that a database has been substantially invested in its production and the investment substantially exploited without authorization. That right can be characterized as a sui-generis right with property rule. We can categorize the right to a neighbouring right such as the right of a performer, a phonogram producer or a broadcasting entity. Comparatively, the Korean Online Digital Contents Act, gives digital contents provider a protection oriented in unfair competition. Usually, the contents producer can be the database producer under the Copyright Act at the same time. Database provider in Korea can enjoy more powerful rights through Copyright Act. Meanings of the property rule regulation is to analyse in database protection. Just like European Union, the Korean attitude can be anticipated effectively to give incentive to the database industry. However, some opinions severely criticize the protection of database producer by property rule to be too much oriented for the right holder, They say the protection gives too much protection to the database producer, in comparison with the general public. Furthermore, they tell that the database protection has no good, because the "substantial" reqruirement is too ambiguous. However, this is too early a time, to assess the Korean Act's revision. The Korean law seems to accept the European Union's Database Directive completely. Therefore, E.U's experience will help Koreans in the future. The Korean Act will be interpreted to strike a good balance between database producer and general public.





한국지식재산학회 산업재산권 제15호 2004.05 pp.309-326

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The provisions of IP law are leges speciales to general tort law under Sec. 709 Civil Code (paintiff's loss profit). Therefore, there are four requirements for damage claims: intention or negligence, existence of an act of infringement, damage, and causality between damage and acts of infringement. The amount of damages is determined by the general principles of tort law. It is recognised that the profits gained through the infringement shall be presumed to be the amount of damages suffered by the owner of the patent right, the patentee, etc., Sec. 102 Patent Act. Furthermore, with the adoption of Section 102(1) in the Japanese Patent Act, the method of calculating damages has been greatly changed, offering a greater level of protection against patent infringement in Japan.



Damages for Patent Infringement according to German Law - Basic principles, assessment and enforcement

Peter Meier-Beck

한국지식재산학회 산업재산권 제15호 2004.05 pp.327-352

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The German legal process for dealing with patent infringement has proved to be a highly effective means of enforcing patents. Traditionally its strengths have been in the speed and relatively low cost of enforcing claims for injunctions against anyone infringing a patent. One of the main reasons for this is that, under the German legal system, the infringement proceedings are strictly separated from the invalidation proceedings, and are heard by different courts. This study gives a picture of what constitutes damages for patent infringement in Germany and briefly examine the normal course of procedure when an action for damages is heard by the courts.


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