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
제17호 (10건)

物件의 發明ㆍ方法의 發明 : 分類基準과 適用


한국지식재산학회 산업재산권 제17호 2005.05 pp.1-30

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An invention is generally classified into either product-invention or process-invention under Korean Patent Law. The category in which an invention is classified is of critical importance, for the scope of enforcement of patented invention is significantly changed depending on the category of the invention. The criterion for the classification has been closely related to element of time such as lapse of time in the invention. In this article, the rationale of the classification is critically reviewed and a new and unambiguous criterion for the classification is suggested based on the essential characteristics of the classification. Application of the suggested criterion, occupancy of space disregarding the scale of the occupancy, to invention related to computer program shows that computer program can be classified into product-invention so long as the computer program is intended for the operation of a computer and the computer program is consisted of physical entities.



특허의 본질에 관한 연구


한국지식재산학회 산업재산권 제17호 2005.05 pp.31-72

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The rationales of the justification of intellectual property rights have been mainly expounded by utilitarian perspectives. However, the utilitarian perspectives do not provide the adequate justification of intellectual property rights in the current knowledge based society. The justification based on natural right perspectives may provide an alternative solution to the current knowledge based society. Especially Lockean theory among natural right perspectives provides in-depth rationales in the knowledge based society. In this paper, I argue that the distinction between trade secrets and patents are expound by the different feature between the state of nature and the civil society of Locke. Trade secrets can be recognized as the property in the state of nature while patents can be regarded as the property in the civil society. For ideas can be privatized as a form of trade secrets in the state of nature in which laws do not exist; the idea can be privatized as a form of patents in the civil society in which laws exist. This means that the patent as a legal monopoly on ideas in the civil society are a legal device for promoting the social surplus. Conclusively, Locke's theory is based not only on the natural right perspective but on the utilitarian perspective.



거울상 이성질체 관련 발명의 특허보호

육소영, 변상현

한국지식재산학회 산업재산권 제17호 2005.05 pp.73-112

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Enantiomer invention is known for bringing great profits to pharmaceutical companies and patent grant will help the companies to secure such profits. However, because enantiomers have identical physical properties except the direction of plane of polarized light and have identical chemical properties except optically active reagents, there seems to be no novelty and inventiveness in enantiomer invention. In reality, even though it is generally known to a skilled person that substances with an asymmetrical atom enable themselves to occur in the form of a racemate or enantiomers and one of enantiomers has a quantitatively greater effect than the other or a racemate, enantiomer invention may be patentable if it is not directly disclosed in the prior art and has more surprising effect than a racemate. In contrast, enantiomer itself is more difficult to be patentable than the use thereof since it is easy to anticipate enantiomer from a known racemate. Finally, regardless of patentability of enantiomer invention, from the outset, it must be scrutinized whether patent protection of enantiomer invention is justifiable from the economic perspective. Considering a modern trend toward increase of selection or improvement invention and the broadening scope of patent, enantiomer invention must be examined positively when it may contribute to development of technology and technical information.



상표의 기능


한국지식재산학회 산업재산권 제17호 2005.05 pp.113-155

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Some of the most important and disputed issues in contemporary trademark law can be traced back to its historical development. For instance, the current disagreement over the objectives of trademark protection has its parallel in the history of conflicting claims for trademark protection from different interest groups centuries ago. A useful place to start the exploration of today's controversy over the objectives of trademark law is look at the original purpose of trademark users. Now we set the purpose of trademark users as the function of trademark. Indeed, all the functions of trademark is not originated from the purpose of trademark users, but that is derived from this and the use of trademark. The original function of trademark is distinctiveness of goods, and the trademark must be distinctive if it is to serve the function of identifying of goods and thereby avoid confusion, deception, or mistake. Historically, trademarks originated as devices to identify in the marketplace the craftspeople responsible for producing goods for sale. Statutes dating back as early as the thirteen century show that this was eventually recognized as having social consequence and economic importance. It seems that these statutes were meant to protect the public by preventing the sale of unidentified goods whose quality could not be ascertained. But it was not just the public nor the individual manufacturer who valued trademarks. Today, trademark law allows the buyer to assert a preference in his or her purchasing, allows the manufacturer to promote its product, and serves to assure a certain level of quality. This means that trademarks serve as a assurance to quality. We recognize these functions that distinguish the source of goods and assure a certain level of quality as a first derived functions. Trademarks provide a marketing advantage and the functions of trademark thrives in every ways. Nowadays, trademark serves as a property, a media of information communication, advertising and competitive material. Furthermore, trademark has a cultural meaning. And we consider these as a secondary derived functions of trademark As trademarks thrive their functions, they conflict with other intellectual property. For example, the application of the concept or doctrine of functionality as applied in trade dress cases shows the expansion of trademark's territory.



지적재산의 개념에 관한 고찰


한국지식재산학회 산업재산권 제17호 2005.05 pp.157-184

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There is no need to limit the scope of the intellectual property by its meaning of the word, as the concept of the intellectual property is continually expanding. At first, we can find common features of the intellectual property. It might be one method to define intellectual property by above-mentioned features. The concept of the information can be utilized by this method. On the other hand, the subject matter to be protected by intellectual property right is increasingly expanded to the output resulted from the investment. However, the rationale of public domain would be jeopardized when the non-creative works are protected by intellectual property right only because of the investment. To solve the problem, it is required new concepts for the output incurred by investment separated from the subject matter of the Copyright. In this study, the concept of "platform", which is distinguished with contents as the new area of subject matter for the intellectual property is employed for providing the new concepts. I suggest that the output resulted from the investment should be taken into consideration as the Platform, and then platform should be protected by the neighboring right system. In conclusion, it is not justified to grant the intellectual property right unless the public interests are created. The legal protection system of intellectual property should be designed in the view of maximizing the public interest, not considering the natural right of the creator or inventor of intellectual property.



中國에서의 소프트웨어 著作權의 事前的 保護에 관한 연구


한국지식재산학회 산업재산권 제17호 2005.05 pp.185-214

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It has been fourteen years since China brought computer software its copyright umbrella by its Regulations on the Protection of Computer Software, enacted pursuant to Article 53 of its Copyright Law. Despite the progress made by China in this area of the law, for most foreign software owners concern remains the protection which in reality their software may enjoy in China. A foreign software owner could generally enhance the protection by taking certain practical measures to safeguard his interests. These measures relate to three ares : namely, software registration, Customs protection. and software contract. Although these measures may appear complex at first sight, they are in fact not difficult for the foreign software owner to adopt. If adopted, they will be of considerable value to the foreign software owner in strengthening his regal position in China. Their value will be even more evident if and when litigation subsequently arises.



음악공연권과 그 제한에 관한 고찰


한국지식재산학회 산업재산권 제17호 2005.05 pp.215-256

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Sec. 17 Copyright Act provides that an author shall have the right to perform his work publicly. However, See. 1 Copyright Act states that the goal of the Act is to contribute to the development of culture by providing protection to copyright and by promoting fair exploitation of works of authorship. The interests of the public are secured through various limitations and exceptions set forth in Subchapter 6, Limitation of Copyright (Sees. 22 through 35). Sec. 26 provides that works may be publicly performed or broadcast for a non-profit purpose and without charging any fees to audience or without receiving any ? fees from elsewhere. The cases where a remuneration is paid to the person who makes such public presentation is an exception, Sec. 26(1). Commercial phonorecords may be heard or shown for a non-profit purpose and without charging the audience any fees, See. 26(2). In this article, I intend to review whether the Copyright Act balances the conflicting interests of an author and the public in the field of music performance.



소프트웨어의 일시적 복제와 전송권


한국지식재산학회 산업재산권 제17호 2005.05 pp.257-282

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The advent of the World Wide Web only compounds the temporary copy problem Temporary copying is inherent to digital technology. Unless it results in the making of a permanent copy, or in a public performance or display, the legitimate interests of the rightsholder have not been harmed. Moreover, even if the temporary copy does result in the making of a permanent copy, or a public performance or display, then the copyright analysis should focus on that permanent copy or public performance or display, and not the temporary copy. Treating temporary copies as potentially infringing copies has imposed needless complexity and uncertainty on the Internet. Since the Internet operates by packets of information moving from the RAM of one server to the RAM of the next, the Internet involves the making of copies that the Korean Court decision and Copyright Act do not considers to be potentially unlawful yet. The copyright owner to control the reproduction of his work is fundmental to the essence of copyright. In this paper, I will discuss that right in relation to copies made in the RAM of a computer (temporary copies )



프랑스 산업디자인법에서 예술의 단일성 이론(la théorie de l'unité l'art)에 관한 연구 - 구 법을 중심으로


한국지식재산학회 산업재산권 제17호 2005.05 pp.283-304

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In France, the protection of industrial design is base on the theory of the unity of art. It results from the legislative history relative to the protection of industrial design because the jurisprudence and the doctrine did not find the criterion which can divide the field of application between the copyright and the design right. This theory means that an industrial design is protected concurrently and automatically by the copyright and the design right. This said system " the total accumulation of protection I" protects an industrial design in the same way as a creation of pur art. The creator of an industrial design enjoys not only the patrimonial rights foreseen by the copyright and the design right but also the moral rights foreseen only by the copyright. However, the theory of the unity of the art provokes certain number of problem First of all, the protectable object in the design right is strongly influenced by the copyright to know the notion of creation of the spirit. The notion of design became a decorative notion by excluding the utilitarian character of an industrial creation. As a consequence, the design right protects only purely aesthetic creation. Secondly, by applying automatically, the copyright, the condition of protection in the design right is absorbed by that of the copyright. As a consequence, the jurisprudence and the doctrine consider that these two conditions are identical and confuse them in favour of the condition of protection in copyright. The novelty in the design right lost its own characteristic in favour of the originality in copyright. In conclusion, the theory of the unity of the art provokes a general confusion between the copyright and the design right.



현행 디자인보호법상 審査主義의 개선방향에 관한 연구


한국지식재산학회 산업재산권 제17호 2005.05 pp.305-329

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Recently, the high-value added or differentiated products with creative design have come to be important in the modem market, the government sees weighs design as the nation's industrial strategy, and the enterprises takes the design strategy more aggressively in terms of company's brand strategy. From this point of view, this study investigates the reasonableness of protection method under the current substantive examination, and discusses the proper direction for design protection after the review of necessity for the conversion to a new system. This study analyzes the legislative trend of some foreign countries and the practices of domestic design protection system and it covers three alternatives: the maintenance the current substantive examination; the overall introduction of non-substantive examination; and introduction unregistered design.


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