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
제16호 (11건)

선사용에 의한 통상실시권


한국지식재산학회 산업재산권 제16호 2004.11 pp.1-37

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Section 103 of Patent Act provides the prior user right. This allows a person who has been utilizing a invention to its patenting to another person, to continue to use the invention under limited circumstances. It is explained as a defense to an action of infringement, but it can cause a contradiction with novelty. So it should be understood as a licence which is independent of patent right. Though the prior user right system is adopted generally, the prior user right system plays a important role in prior filed system. Traditionally the theories of The Prior User Right are divided that of preexisting invention protection, incitement, equity, economy and so on, but now the theory of equity and economy is a prevailing opinion. Purpose of the prior user right system is something preventing double patent and unnecessary application and balancing profit of occupants of invention. I wonder whether the explanation of theory limiting in giving a someone the prior use right is correct. And it is valuable that we consider that the prior use right occurs in putting it behind patent requested. The meaning of The Prior User Right System in prior filed Paten law system should be testified, and demanded that The Prior User Right System be harmonized with current Patent law system.



기업의 직무발명보상에 관한 연구 : 최근 일본의 직무발명보상에 대한 판례 및 기업의 대응을 계기로


한국지식재산학회 산업재산권 제16호 2004.11 pp.39-82

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Recently several important judicial rulings have been concluded in relation to the in-service inventions of employees in Japan. The employees who are dissatisfied with the amount of remuneration provided by the their employers have filed lawsuits against the companies after retire, asking for the equivalent or due remuneration under the Japanese patent law. And the total amount of the remuneration becomes enormous. Through their harsh experiences of the lawsuits related to the remuneration for in-service inventions, the Japanese companies have begun to set up a plan which amends their in- house provisions on the compensation for employees' inventions including raising the level of remuneration. The Japanese patent law system and the practices on the remuneration for in-service inventions in the past are not that different from the current those of Korea. In this point, a series of judicial rulings and experience of Japan on the remuneration for employees' inventions so far throw a lot of implications on the practices of Korea. Therefore this study investigates the trend of compensation for the employees' inventions through a general perspective analysis focusing on the recent judicial cases on remuneration for in-service inventions and the companies' response to them in Japan. So this trend find out a suggestive point under condition of presently domestic remuneration for in-service inventions. And it investigates the level of remuneration for in-service inventions through actual condition of analysis, also countermeasures as well as many problems which could be suggested on domestic remuneration for in-service inventions system in the future.



특허 · 실용신안제도의 위상에 대한 재검토 : 제도의 효율성 측면에서의 접근


한국지식재산학회 산업재산권 제16호 2004.11 pp.83-115

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The creation is protected by Patent system and Copyright system. There are the Patent approach to protect ideas and the Copyright approach to protect expression. But the Patent system protects only the embodied idea, and requires huge social cost. On the other hand, the embodied idea would be classified by two factors. One factor is how difficult to perform the reverse analysis and the other is weather it is possible determining the embodied idea has inventive step or not. In order to maximize the effectiveness of the Patent system, I suggest that the subject matter of Patents should be focused on the embodied idea that has the inventive step with difficulty in analyzing reverse. To grade incentive upon such point, the Utility Model System can be effectively applied by re- establishing the relationship with the Patent Act and the position as the idea protection law.



인간복제가 기존 법률질서에 주는 충격과 대응


한국지식재산학회 산업재산권 제16호 2004.11 pp.117-147

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A field discussed most actively in a current society has a biotechnology field and an informatization field. A lot of study and effort are requested to a biotechnology field and it is considered to be the important industry that can conquer a market of the world according to a degree of the development. Specially, a human reproduction will be expected the most revolutionary development in a biotechnology field, and prospective with the revolutionary means that can cure a human incurability disease. However, development of these biotechnologies is to bump against a wall called life ethics. Specially, a human reproduction is encountering a severe objection of a religion group and bring about many ethic problem. The purpose of this study looks into these social problems (specially legal problem), it is to find the countenneasure in question.



도메인이름 등록인에 주어지는 권리의 법적성격


한국지식재산학회 산업재산권 제16호 2004.11 pp.149-204

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Domain names have become a valuable intangible real estate of cyber space beyond just internet address. The monetary value of a domain names suggests that it would be proper to classify domain names as a new property. Yet both courts and legislatures are ambivalent in their legal treatment of domain names. The inquiry into whether domain names are a new property leads to other related questions. ; Should a taxes be levied on the property interests by selling domain names to another? Are domain names merely products of service contracts between a registrar and a registrant, and thus not treated as property for garnishment proceedings? Are the interests in domain names similar to license rights? This paper firstly examines the basic legal relationship between a registrar and a registrant and a third party in order to answer the above inquires. And then, analyze recent judicial decisions appraising the nature of the rights for the domain name holder. In particular, focuses on the ones rendered by USA, German and domestic Courts including the recent legislation relating to domain name disputes and subsequent judicial interpretations of the statute. Finally discusses the implications of judicial dissonance in tax-levy on commercial transactions and bankruptcy proceedings involving domain names. This Article concludes that the maturing process of e-commerce requires a clear classification of domain names as intangible property and appropriate legislative protection for the domain name holders and qualify them as a property entitled to some form of legal protection and proper responsibility.



상표법조약 개정(안)의 검토와 현행 상표법 개정 논의 : 상표법조약 개정(안) 제8조 · 제14조를 중심으로


한국지식재산학회 산업재산권 제16호 2004.11 pp.205-251

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Trademark Law Treaty(TLT) which concluded in 1994 has sought the simplification of application and registration, and ensured better protection of trademark. The TLT has harmonized trademark laws which had varied in several national and regional jurisdictions. Even with harmonization efforts, there are some flaws in the TLT; formalities than substantive requirement, conventional methods in transmittal of communications, the lack of provision in case of failure to comply with time limit, and poor administrative provisions. For the concrete and practical harmonization, the work conducted by World Intellectual Property Organization (WIPO) presents in Draft Revised TLT(Draft Revised). This study focuses on two provisions; communications(Article 8) and measures relating to time limit(Article 14) among the revised Articles and Rules. The former is based on keeping pace with developments in telecommunications, the latter is on the better protection for the applicants and/ or the holders. These provisions aiming at the concrete harmonization and simplification of Draft Revised might be applied to existing Korean Trademark Act, if Draft Revised is concluded at WIPO Diplomatic Conference in 2006. The discussions to adoption of Draft Revised and its reception to Korean Trademark Act are key work for heading towards newly emerging framework of worldwide trademark protection. Consequently, the opinions and their debates in the view of further development along with this study would lead to adjust new measures of the trademark protection and the setting between national and international trademark law.



상표법에 의한 미등록 주지 · 저명상표의 통합적 보호에 관한 고찰


한국지식재산학회 산업재산권 제16호 2004.11 pp.253-302

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Many countries protect unregistered well-known marks in accordance with their international obligations under the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPs Agreement). Well-known trade and service marks enjoy protection against signs which are considered a reproduction, imitation or translation of that mark provided that they are likely to cause confusion in the relevant sector of the public. Well-known marks are usually protected, irrespective of whether they are registered or not, in respect of goods and services which are identical with, or similar to, those for which they have gained their reputation. In many countries, they are also, under certain conditions protected for dissimilar goods and services. In Korea, there are two laws related to the protection of well-known trademarks, Trademark law and Unfair Competition Prevention Law. Even though a mark has been registered in accordance with the Trademark law, in the case that it is famous or well-known mark of a third party defined by the Unfair Competition Prevention Law, there could be conflicting legal issues. To tackle the conflict, Section 15 of the Unfair Competition Prevention Law provides that in cases of any conflict or inconsistence the Trademark Law applies instead(pre-emption). But Supreme Court of Korea has interpreted Section 15 differently from its literal meaning. To find out the appropriate way of solve such problems, this paper examines the relationship between Trademark Law and Unfair Competition Prevention Law.



상표의 식별력과 기능성


한국지식재산학회 산업재산권 제16호 2004.11 pp.303-346

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The main function of trademarks is to identify the goods or services' sources and to distinguish them from others. In this sense, the question wheather a mark is qualified as a trademark wholly depends on the realities and practices of the business society. The boundary of trademarks has expanded along with the changes of the technical, economic and cultural climate in the society. All marks, however, are not to be automatically protected as trademarks: there must be a standard to distinguish a protectable marks from a non-desirable marks. For example, a product's trade dress becomes sufficiently distinctive to qualify for protection under the Lanham Act if it is either inherently distinctive or if it is acquires secondary meaning. Furthermore, to acquire a 'secondary meaning' in the minds of the buying public, for purpose of trade dress protection, an article of merchandise must proclaim its identification with its source, and not simply stimulate inquiry about it. An important doctrine, drawn from the common law, that serves as a limiting principle in trade dress cases is the doctrine of functionality. Although it now ha a statutory pedigree, by virtue of the 1998 Trademark Amendments, the doctrine of functionality has a long history in the common law of trademarks. According to the Supreme Court, in order for trademarks or trade dress to be protected under the Lanham Act, it mustnot be functional; moreover, the functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature. These general principles are largely undisputed, however, their application to the trade dress area is the subject of considerable debate. This article is dedicated to examine the requirement of distinctiveness and the doctrine of functionality in light of the American case law, which will serve as useful reference for future operation of the non- conventional trademarks in Korea. Doctrinal developments and legislative trends in the advanced countries also should be followed up.



사이버영업과 지적재산권


한국지식재산학회 산업재산권 제16호 2004.11 pp.347-395

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The purpose of this Article is to review intellectual property problems of cyberspace business such as cyber-contents provision business, online service provision business, and cyber shopping mall and to present the future tasks in relation to intellectual property problems in cyberspace business. In Chapter 1, the purpose and scope of the research are explained. In Chapter 2, the concept and feature of cyberspace business are defined and the types of cyber business are classified. In Chapter 3, common problems of intellectual property for all cyberspace business classified above are reviewed. In Chapter 4, inherent problems of intellectual property for the cyber-contents provision business are reviewed. In Chapter 5, inherent or sole problems of intellectual property for the online service provision business are reviewed. In Chapter 6, inherent problems of intellectual property for the cyber shopping mall business are reviewed. The cyber merchants who carry on cyberspace business should pay attention (ⅰ) whether any parts of their website are protected as intellectual property and (ⅱ) whether any parts of their website or any behaviors in managing the website pirate any other person's intellectual property. Traditional intellectual property protection in cyberspace is confronted with limitations and a way to overcome the problems is much sought. To resolve intellectual property problem in cyberspace, we should create independent cyber IP system, not just to amend traditional intellectual property system. Under the new system, we should give content providers protection that stimulates the creation of new works in order to develop cyber business such as portal business, digital contents business and game business which Korea has more competitive power than other countries. In addition, an establishment of intellectual property management mechanism and the intellectual property exchange is required in order that online OSP can use intellectual property comfortably. I think that a prompt establishment of independent laws and systems in relation to intellectual property in Cyberspace enables to create an environment more conductive to cyber business.



국제표준기술관련 특허의 라이센싱을 위한 법률 및 제도적 방안

원정욱, 전학성

한국지식재산학회 산업재산권 제16호 2004.11 pp.397-430

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In Korea we don't have experienced standard technology patent licensing like MPEG pooling system or 3G patent platform. In this paper several issues - philosophy how to deal patent pooling system, Antitrust Law, MPEG pooling system or 3G patent platform as model case, how to deal patent appeared after standardization - should be discussed in detail. Analyzing model cases gives us idea that we should go to any direction. And then we should find proper way suitable to Korean environment. This paper will be expected to contribute to patent licensing for Korean standard technology in future.



산업재산권 평가제도의 현황과 과제


한국지식재산학회 산업재산권 제16호 2004.11 pp.431-465

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Present valuation system of technology including industrial property rights such as patents and utility models has been activated to effectively perform government supports on projects in both research and developments stages and commercialization stages. Also, it is expected that the technology effectiveness is being reconsidered through technology appraisal activities with more focus on its application such as technology transfer, technology commercialization and technology guarantee offer. However, those who currently secure legal status as industrial property right appraisers are the ones who obtain their status in the law concerned with evaluation of real estates, even though evaluation of industrial property rights is quite different from that of real estates. In this study, we examined not only the laws related with the technology valuation but suggested solutions for proper operation of the valuation system. Therefore, the purpose of this study is to show the direction of technology valuation system in the future to activate technology commercialization by securing the stable legal foundation and building necessary infrastructures.


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