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
제18호 (10건)

전통지식ㆍ유전자원의 보호에 관한 국제적 논의 검토


한국지식재산학회 산업재산권 제18호 2005.11 pp.1-40

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Traditional knowledge and genetic resources are newly emerging subject-matter of intellectual property rights. Developed countries such as US, Japan have conducted the contract-based approach to the access and benefit sharing from the traditional knowledge and genetic resources, which accepted with the adoption of Convention Biological Diversity(CBD). Nonetheless, developing countries and less developed countries such as Peru, India, China are not satisfied with CBD and Bonn Directives because of unfair and inequable policy measures on the access and benefit sharing in conjunction with contract systems. They require the new concept of the access and benefit sharing through a source-disclosure requirement in existing patent system. This disclosure requirement is exported to WTO/Doha Development Agenda, WIPO Intergovemment Committee on Traditional Knowledge and Genetic Resources, and WIPO Standing Committee on Patents for Substantive Patent Law Treaty(patent law harmonization). In these multi-forum, the developing countries are expanding their expectation and demands which facilitate better fruits in exchange for traditional knowledge and genetic resources. Albeit their continuous rational justifications, a new disclosure requirement in patent system is just a existing issue, but a vague resolution of the question, to date. This article addresses the legal issues in the traditional knowledge and genetic resources, and then examines the resonable solutions for conflict with the contract-based approach and the new disclosure requirement approach. To determine patent policy and its legislative adaptation remains our assignments. The reasonable protection and sharing policy for traditional knowledge and genetic resources shall be sought in existing Intellectual Property Rights of Korea with a perspective of multilateral works.



생명공학적 발명의 보호와 유전자특허의 보호범위


한국지식재산학회 산업재산권 제18호 2005.11 pp.41-81

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Naeh dem Art. 27 TRIPs ergibt sich, dass auch Erfindungen einer Sequenz oder Teilsequenz eines Gens, soweit sie die allgemeinen Patentierungsvoraussetzungen erfuellen, sowohl als Erzeugnisse(Stoffe) als auch als Verfahren, auch in der besonderen Form von An- bzw. Verwendungspatenten, geschuetzt werden muessen. Trotz der strukturell-informationellen Doppelnatur von DNA-Sequenzen und den sich daraus ergebenden vielfaeltigen Besonderheiten, ist davon auszugehen, dass es sich bei DNA-Sequenzen um in der Natur vorhandene biochemisehe Substanzen handelt, soweit deren Aufbau mit dem natuerliehen identiseh ist. Aueh DNA-Sequenzen werden letzlieh als biochemisehe Stoffe verwendet, gleieh ob bei der Herstellung von Proteinen, etc. oder bei Gendiagnostik oder Gentherapie. Mit der Feststellung, dass es sieh bei DNA-Sequenzen urn bioehemisehe Substanzen, Stoffe, handelt, ist festgelegt, dass fuer sie aueh ein Erzeugnissehutz, also Stoffsehutz zu gewaehrleisten ist, wenn die allgemeinen Patentierungsvoraussetzungen der Neuheit und erfinderisehen Taetigkeit erfuellt sind. Die Frage, ob die Funktionsangabe(n) in die Patentansprueche aufgenommen werden muessen, haengt davon ab, wo der entscheidende, d.h. auch auf erfinderische Taetigkeit beruhende Beitrag der Erfindung zu sehen ist. Beruht bereits die Bereitstellung der DNA-Sequenzen, zum Beispiel einer bestimmten, fuer die Expression eines Proteins verantwortlichen Kombination der Exxons eines Gens auf erfinderischer Taetigkeit, so waere die Forderung, die Funktionsangabe muesse in die Patentansprueche aufgenommen werden, nicht gerechtfertigt. Ergibt hingegen die Pruefung des relevanten Stands der Technik, dass die Erfindungshoehe lediglich bei der Funktionsausklaerung liegt, kann der Anrnelder irn Laufe des Pruefungs- und Einspruchsverfahren angehalten werden, die Patentansprueche entsprechend mit der Funktionsangabe der beanspruchten DNA-Sequenzen zu ergaenzen, d.h. an diese zu binden und darnit den Schutzbereich des Patents entsprechend einzuschraenken.



생명공학산업의 영리성과 특허권에 대한 제한


한국지식재산학회 산업재산권 제18호 2005.11 pp.83-107

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This paper will address the following issues: first, the relationship between profitability and publicity of a corporation, especially bio-industry; second, the harmonization between the benefit of the patent holders and public health issues of the poor or under-developing countries. Every corporation should have its right to enjoy and pursue making profit from its business. Making profit is the one of the main purposes in establishing a corporation. The same rule applies to the fields of bio- industry. On the other hand, a corporation should also have its deep concern on the society in which it makes profit because a corporation cannot exist without the cooperation with the society. The same rule also applies to the bio-industry corporation. Further, in the field of bio-industry, the publicity of bio- industry corporations should be highly concerned for improvement of the public health. Also, Patent are a monopoly that an investor is entitled to for a limited period of time. One of the objectives of patent law as a whole is that a patent is a bargain between the inventor and the public for which the inventor is allowed to exploit an invention for a certain amount of time in exchange for disclosing his invention to the public. Compulsory licensing permits the manufacturer and use of generic drugs without the agreement of the patent holder. A compulsory license may be provided only if some circumstances, for example, due to national defense or public health, etc, are satisfied.



의료관련행위의 특허법에 의한 보호


한국지식재산학회 산업재산권 제18호 2005.11 pp.109-131

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Recently, it has been faced with a controversy over medical method patents in Korea. Arguments against patents on medical method focused on several moral and ethical concerns including: the impact on patient access to life-saving techniques because of cost or a physician's fear of suit; possible invasions of patient privacy in the gathering of patent-related information; interference with physician autonomy regarding patient treatment; and disintegration of the traditional culture of disclosure and peer review that pervades the medical community and enhances the overall quality of patient care. However, the patenting of medical method poses substantial risks to the effective practice of medicine by limiting the availability of new procedures to patients, and it should be condemned on this basis. Accordingly, it can be believed that it is unethical for physicians to seek, secure, or enforce patents on medical procedures. In this article, I intend to review what legal issues are involved in patenting of medical method under patent law system.



대학기술이전전담조직의 활성화를 위한 법적과제


한국지식재산학회 산업재산권 제18호 2005.11 pp.133-171

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In this paper, I have examined ways of strengthening university technology transfer offices in Korea with regard to this organization, its budget and human resources. First, concerning the organization, it is necessary to have policy enabling professors to produce excellent inventions and ensuring these inventions can be protected properly. Also, universities should set their administrative support systems to be able to perform all services; from research contracts to technology transfers. Futhermore, university technology transfer offices should build strong networks with companies and other related specialized offices. Second, concerning the budget, it is desirable that the government amend some provisions of the research expenses regulations so that university technology transfer offices use a certain percentage of the research expenses for the professor's patent applications and technology transfers. As well, as technology transfer falls on the public domain, the national and the regional governments should support the aiding of budget for university technology transfer offices. Last, regarding human resources, it is preferable that the persons who are engage in university technology transfer offices are guaranteed regular job and can obtain specialization through the use of strengthened training courses.



국ㆍ공립대학교수의 직무발명과 활성화에 관한 法理 및 制度的 考察


한국지식재산학회 산업재산권 제18호 2005.11 pp.173-214

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This article suggests that how a remuneration system of employees' inventions enhances national/public university professors' desire of invention and that how TLO controls their masterpieces effectively by more consolidated system related to employees' inventions to lead development of Korea as well as financial stability of universities. For an activation of employees' inventions, it is needed to determine a violation, an amount of remuneration, a boundary of that invention through a provisions on the compensation regulation for employees' inventions and foundation of examination board. In addition, aside from over 50% compensation regulation for researchers provided in "Enforcement Decree of Technology Transfer Facilitation", we should prepare a legislation of securable profit period, compensation for retired employees, desirable dispute settlement system, co-liability for contribution proof of that invention. And, for an activation of TLO for technology businesses or transactions, we may consider an implication of pre-application system, a tex incentive and supports of patent fee, educational and personnel policy and TLO establishment. Those are helpful to control and transfer national/public university professors' inventions. Therefore, to decide national/public university professors' inventions and enforce remuneration system could heighten professors' invention desire and facilitate contribution of university finance, investment of R&D, industrialization of Korea.



상표법상 有名人(Celebrity)의 財産的 價値가 있는 姓名ㆍ肖像의 보호문제


한국지식재산학회 산업재산권 제18호 2005.11 pp.215-240

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The names and the likeness of individual, if they can identify the sources of products and service, can be protected as a trademark from infringement causing the possibility of confusion. The theory of publicity can be construed as a cause of non-registration under the trademark law, in terms of showing similar aspect of protecting the power of customer inducement. Therefore, this study examines the possible problems of the publicity rights under the current trademark law. And it also reviews how the current trademark law can provide the protection for the publicity rights. From this review, it tries to find the problems and improvement of trademark law in protecting the personal property value such as the names and the likeness of the celebrities.



프라이버시權과 퍼블리시티權의 人格權的 法理


한국지식재산학회 산업재산권 제18호 2005.11 pp.241-280

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The personal right is a general term for human profits such as freedom, honor, personal liberty and so on; and its object is personal characteristics. One's personal rights are diverse interests to be protected from any third party for one's free development, or rights for enjoying as the subject of rights, or one's personal interests inseparable from oneself. However, personal rights have ambiguity in their concept, so arise many controversies. Therefore, each country does not concretely provide for abstract personal rights whose contents are hard to definitely define, but he accepts social customs into the decisions of courts and thereafter legislates the decisions. These days, society is more complex and diverse, and therefore a sense of values is changed and need to improve the systems and the laws of the past. Besides today, by the reason of radical development of popular entertainment, professional sports and advertising industry, there is many numbers of case that use of a name or likeness of famous person for advertisement, so then began to offense others with no permission. In this treatise, I will look into on what grounds personal rights should be protected from their violation, regardless of whether personal rights are expressly prescribed or not. Correct understanding and responding of the right of publicity is very important by the meaning of cultural and legislative aspects, that is the reason why I make a point of explaining about the subject of protection of this right in preference.



지적재산권 상호간의 경계획정의 원리와 권리충돌 해법의 모색


한국지식재산학회 산업재산권 제18호 2005.11 pp.281-336

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While copyrights, patents, designs and trademarks may individually protect a particular object, it is also possible that more than one of these forms of protection can be rendered to the same object. For example, an Applied Arts Design may be protected by several different forms of intellectual property rights. Historically, there had been such Demarcation Principles as Doctrine of Elections, Doctrine of Printed Matter, Doctrine of Functionality that drew a line between different protection forms of intellectual property rights. Especially Doctrine of Elections limited the creator of an intellectual works to only one form of protection but the Doctrine has been substantially abandoned and cumulative protection by the different intellectual property rights has been allowed in general and these Cumulative Protection Systems may cause much troubles and require resolution policy demarcating a line between intellectual property rights. One of the most difficult issues arising under these system is the copyrightability of useful articles(applied arts design) under the "separability standard" that is still an important demarcation principle. Another principle demarcating a line between intellectual property rights is a "doctrine of functionality" in respect of the competition policy, legal purpose of each intellectual property law and public domain problems for consideration. Thus, this article discusses these demarcation principles in order to avoid problems and conflicts under these dual protection systems. Furthermore, this article will analyze the provision for resolving conflicts between intellectual property rights, which is providing that prior rights holder's consent is prerequisite for the use of their registered rights afterwards. This conflict resolving system can be compared with EU legislative system which reject a trademark or design application from registration conflicting with prior copyright by another beforehand. With a comparative perspective, this article will examine the related provisions of ED. And finally this article will propose a workable method for the desirable directions of current system to be revised in the future for the solution of conflicts between Intellectual Property Rights.



온라인디지털콘텐츠산업발전법 개정방안에 관한 검토


한국지식재산학회 산업재산권 제18호 2005.11 pp.337-362

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The On-line Digital Contents Industry Promotion Act which was established in 2002, not only includes the basic infrastructure and supportive foundation but also substantial basis for on-line content manufacturer. But Amended Copyright Act which protects the database producers irrelevant to creativity standard results in the controversy to substantial protections for on-line contents producers' investment. In this paper, we have studied the roles of this act in substantial ways and the scheme to improve the marking system for on-line content manufacturer.


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