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
제25호 (11건)



중세 이후 특허법제사에 관한 연구


한국지식재산학회 산업재산권 제25호 2008.04 pp.1-28

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This article handles with the patent history since the Middle Ages, which especially includes Venetian Patent Act as the oldest patent law in the world as well as the Statue of Monopolies in England called as the Magna Charta of the patent law. The prerogative right to grant monopolies to inventions in Europe was indiscretely given by the Crown for the purpose of supporting its own poor finances, but afterwards began to grant monopolies according to substantial law on patent. In 1850 to 1873 free trade movement which did not acknowledge monopolies in market was against pro patent. However, aggravation of the economy in Europe those days brought patent advocates again to provide opportunities to deliver a counterattack to those who asserted anti-patent, even abolition of the patent system. In the end, patent advocates successfully defeated anti-patent. Since then many countries have adopted the policy establishing their own patent acts.



특허권 관리회사(Patent Troll)의 현황과 적법성에 관한 연구


한국지식재산학회 산업재산권 제25호 2008.04 pp.29-86

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Technological innovation or invention is one of the most important driving forces of the economic growth recently. The patent system is an institutional foundation to promote these activities of the company. Because the science technology of the company became an important factor which determines its competitiveness, the patent infringement disputes concerning high-technology industries frequently occur in recent years. The Patent Management Company(Patent Troll) gets the immense profits raising legal patent suits since 2000. The Patent Management Company (Patent Troll) employs some inventors, technical experts, and lawyers for its purpose. However, it does not found manufacturing factory or business system. The Patent Management Company (Patent Troll) made technical wall and technical net using a lot of patent application. In addition, it takes the patent of small or medium enterprises and inventors into its side. The Patent Troll take strong interest in the IT(information technology) and BT(biological technology) field. At first, the Patent Troll institute a lawsuit against the highest enterprise(ex Nokia, Samsung etc) of the field. And then, the rest enterprises cannot but adopt the proposal of the Patent Troll. This thesis indicates the background of the advent of the Patent Management Company(Patent Troll) and main status of application, registration, lawsuit strategy, and main patent of it. (Focused on InterDigital, NPT, Forgent Networks, Intellectual Ventures, Acacia Research, Ocean Tomo, Mercexchange, and BTG Patent Management Company) Also, this study analyzes the Lawful Characteristic of the Patent Management Company(Patent Troll). The first problem of the Patent Management Company(Patent Troll) is that it would restrict the fair competition and trade. The second problem is that it would delay the use and development of technology. The third problem is that there would be many good victims.



국가핵심기술의 수출규제보상에 관한 특허법적 연구


한국지식재산학회 산업재산권 제25호 2008.04 pp.85-131

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To protect illegal leaking to overseas of the national core technologies, the "Industrial Technology Leaking Prevention and Protection Law(ITLPPL)" has been established in April 27, 2007, and the national core technologies have been officially announced and designated totally 40 technologies which would be taken place non-benefit in national security and people economic progress if they were leaked to overseas. However, regardless of establishing of regulations for restriction of export for the national core technologies, the compensation based on the restriction of export has not showed on the ITLPPL. This thesis is studying the compensation based on the restriction of export for the national core technologies adopting present Patent Law. In the Patent Law, if an applied invention is related to the national defense, the application should be belong to the Ministry of National Defense with compensation for the applicant under patent law section 41. Therefore, in the same technical field of the national defense, the compensation caused by the export restriction of the national core technologies could be adoptable to the patent law if the national core technologies should be applied to patent or utility model prior to export or even to open.



판매전 혼동이론의 적용확대와 그 비판


한국지식재산학회 산업재산권 제25호 2008.04 pp.135-161

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The criterion for considering trademark infringement is based upon the traditional likelihood of confusion analysis. Initial interest confusion theory is related to this analysis. This theory was first adopted thirty years ago in the Grotrian v. Steinway & Sons case. US courts have recently expanded the application of this theory, in particular, in digital environments, for examples, metatag, domain name disputes, pop-up or pop-down advertisement, and keyword and banner advertisements. Based upon initial interest confusion theory, courts hold that defendant commits trademark infringement when consumers might initially, not at the time of selling, be attracted by a competitor’s product or service. Even if not adopted all US courts and commentators, initial interest confusion theory has been championed by many US courts and commentators. Initial interest confusion theory is attractive when applied to some issues in internet, it may cause some problems. It may inappropriately expand the rights of trademark owner, and prevent comparative advertisement. This paper argues that it is appropriate to apply this theory in some cases, but that it argues against too expansive application.



식약청 판매허가와 특허권의 연계를 위한 특허심판의 당사자 적격


한국지식재산학회 산업재산권 제25호 2008.04 pp.163-204

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The Korea-US Free Trade Agreement having been agreed, Korea shall introduce the so-called Korean version of the U.S. Orange Book system. Under the system, patentee (brand drug company) will be notified of generic drug application. Then upon the patentee’s taking a required action, KFDA may automatically stay its approval procedure. It will be very complicated to soft-land and operate the system, due to related complex KFDA procedure, litigation procedure and patent trial procedure. This paper discusses some issues relevant to such procedures: efficiency of preliminary injunction system on this matter, patentee’s or generic drug applicant’s standing on a patent trial or a patent litigation. This paper has profound that (1) patentee may have standing on a preliminary injunction procedure, but injunction order may be little probable, (2) patentee may have standing on a (positive) patent scope confirmation trial, (3) generic drug applicant may have standing on a (negative) patent scope confirmation trial, and (4) generic drug applicant may have standing on a patent invalidation trial. However the Supreme Court has not resolved its self-conflicting positions on the standing issue of patent trials. If the approval-patent linkage system is being introduced, brand drug companies or generic drug companies may habitually request such trials. Without resolution of the Supreme Court’s self-conflicting positions, the brand new approval-patent linkage system will cause many troubles to users and relevant authorities. To smoothly operate the approval-patent linkage system, to enhance function of patent trial system, and to harmonize with U.S. and Japanese precedents, the Supreme Court should widen the door for such trials.



프랑스의 지리적 표시보호제도에 관한 연구


한국지식재산학회 산업재산권 제25호 2008.04 pp.203-250

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A geographical indication (GI) is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that origin. This definition of the GI is extremely wide-ranging, such that the notion can include agricultural, agrifood or industrial products, or indeed goods originating in the handicraft industry, whose association with their geographical origin can at times be extremely tenuous. The scope of the definition also includes the notion of appellation of origin, which is a sub-category of geographical indication with tighter and more carefully defined requirements. An appellation of origin (AO) is a special kind of GI. The GI must not be confused with the indication of source, which provides information solely as to the place of production or production of a product, without indicating or guaranteeing a particular quality associated with the place of origin or the modes of production (example: made in China). Furthermore, the GI is a collectⅣe right if use that is reserved exclusⅣely for those who respect the specifications (book of requirements) they define and that are approved by a competent authority. Geographical indications of production (GI), which associate an agricultural or handicraft product with the territory from which it comes, are a collectⅣe tool for producers to promote the products of their territory. The geographical indication system aims to promote products that are part of a food and cultural heritage that is deemed to be inalienable. The period for the use of the right is the same as that of the existence of the product. This system enables territories to be promoted thanks to the criterion of authentic production techniques, reserved for the market players within the gⅣen area. Geographical indications are a means to create added value locally. When the name of a product receⅣes protection as a geographical indication, the local communities benefit from the positⅣe impact. These systems linked with the origin are also tools in the development and promotion of regions. They are of particular interest for region where agriculture has low levels of productⅣity, thanks to the added value they provide. GI help maintain and develop actⅣities in rural area that may be disadvantaged, by promoting local know-how and production centers. GI protection also provides other benefits for local communities. Geographical indications encourage the dⅣersification of production, and thereby the preservation of biodⅣersity, local know-how and natural resources. GI also have a positⅣe impact on tourism. For example, gastronomy trails are now an integral part of holidays in countries such as France. The system also provides the consumer with certain guarantees. Consumers are becoming ever more attentⅣe to what they buy and what they have in their plates. Their expectations are higher than in the past, in particular with regard to the information provided on the methods by which the product was manufactured, and the degree to which it is typical of its area of origin. If the products meet all these requirements, consumers will be more inclined to pay more for them than for standard products. The sanctions applicable to such infringements in France are of two kinds: administratⅣe and criminal. In order to benefit from a geographical indication, the products must meet production conditions that are set out in each of the specifications documents (book of requirements) that relate to geographical indications. Failure to respect the production conditions that are defined in the specifications (book of requirements) must entail a ban on using the name of the geographical indication. The fraudulent use of a geographical indication can lead to action before the criminal courts. Certain services (for example: the Directorate General for Consumption, Competition and the Repression of Fraud in France, customs) may have the power to take measures against infringements of geographical indications. Offences include deceit or attempt to deceⅣe, of usurpation of geographical indication or use of an incorrect geographical indication. Generally speaking, the regulations prohibit the use of a geographical name that constitutes the name of a GI or any other words that evoke it, for any similar product. Another possibility exists, although it is not recognised by the TRIPs agreements, the fraudulent use of reputation. This sanction prohibits the use of a geographical name that constitutes the name of a GI for any other product or service when this use is likely to dⅣert or weaken the reputation of the GI. Geographical indications, because they represent an agricultural model that brings together quality and harmonious use of rural areas, are a major economic asset that must be protected against infringement.



‘기술로 문화산업을 이끄는’ 저작권법에 대한 논의


한국지식재산학회 산업재산권 제25호 2008.04 pp.253-289

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This article examines the basic standards for copyrightability through the comparative method and the legal historical approach. To date, copyright law has broadened the scope of copyright protection for works thanks to new technology, since Copyright of Anne was introduced to us. The application of technical advance supports copyright business active, however it makes us confused the concept of 'authorship' in negative side. It concerns the authorship which is challenged by economic effect from cultural industry. In a word, Copyright is based on creativity from author's work. Copyright is channel for cultural development, but should not be way for cultural industry. Even emphasizing on the consumer welfare or the economic reward from author's work via copyright business, the legal framework for copyright and copyright law should be about authorship.



유럽연합의 지적재산권 보호정책에 관한 소고


한국지식재산학회 산업재산권 제25호 2008.04 pp.293-324

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The European Union is a major force and the greatest market in the World. Even though the European Union has constituted of various languages and cultures, it has tried to unite the European Communities. The measure to unite the diversities of Europe is, according to my opinion, consent of the Communities in order to have the more powerful influence to each other. European Unity has stepped toward economic coordination. The European Union has a long tradition to protect the right of intellectual property. The rights of intellectual property in the European countries are protected equally and at minimum degree through the implementation of the directives that the European Community Institutions, for example, the Council or the Commission, prescribe. The European Union is one of the most meaningful economic partners to us. So, we need to know the European legislations about intellectual property laws to protect our intellectual property industries in the European Union.



국제조약상 저작권제한과 예외규정 및 국내법상 권리제한 입법


한국지식재산학회 산업재산권 제25호 2008.04 pp.325-358

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Article 13 of the WTO TRIPs Agreement stipulates that WTO Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the copyright holder. Through the interpretation of Berne Convention and the US Copyright Act Case of the WTO, the three- step test has become a cornerstone to the interpretation and domestic legislations on copyright limitations and exceptions. The three-step test was also adopted in the new internet treaties, WCT and WPPT in 1996. Based on recent developments, this paper analyzed necessary elements for the three-step test, and furthermore examined how the test was reflected in domestic legislations of various countries on copyright limitations and exceptions. After finalizing the KORUS FTA, Korean government submitted proposed amendment bills to Copyright Act and Computer Program Protection Act for the preparation of FTA implementation. Both bills included new comprehensive copyright limitation clauses which are the reflection of Article 13 of the WTO TRIPs Agreement and Section 107 of the US Copyright Act. To balance the strengthened copyright holder’s right by the KORUS FTA and the weakened right of copyright users, the reasonable role of the Korean domestic courts in interpretation of those clauses has become a crucially important matter. It remains to be seen how the courts will act wisely on the new copyright environment.



오픈소스 소프트웨어와 법적 위험


한국지식재산학회 산업재산권 제25호 2008.04 pp.359-392

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Over the past several years as the worlds of Commercial and Open Source Software (OSS) have moved towards each other, there have been increasing questions raised about the “legal risks” of various OSS licenses with the development practices and licensing models typically used by commercial software developers. These legal risks issues are said to be particularly acute in the context of software licensed under the GNU General Public License (GPL), given that its so?called “Copyleft” terms require developers to pass on broad rights to the software their create using or incorporating GPL code. Although initially many open source proponents suggested that these existing commercial practices and intellectual property licensing models would need to yield to the terms of OSS licenses such as the GPL, some practitioners have now pointed out that the supposed legal risks have been misstated or even overstated. But there are significant legal risks in designing products that include both open source and proprietary components. The goal of this paper is to help the reader gain a basic understanding of the differences between open source and commercial software in terms of some of the practical implications of each and some of the broader issues that software developers, governments and commercial enterprises might want to consider in terms of their own policies and acquisition activities



국내외 환경변화에 대응한 변리사제도의 개선방안


한국지식재산학회 산업재산권 제25호 2008.04 pp.393-440

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This article is to response to, the influences from the FTA, and the establishment of the law school system. The two great changes would cause much higher competition in the legal service market, and thus are assumed to bring many difficulties to the patent attorneys whose role is crucial to the sustainable development of the knowledge-based society. By analyzing the influences to the patent attorney system, this article makes the following three suggestions: (1) A specialist system of patent attorneys, which classifies the scopes of patent attorneys' specialty. This makes clients choose their agents in accordance with the character of their legal issues. This also improves the capability of patent attorneys in their specialty. (2) A reinforced specialist job education, which requires patent attorneys to study with the help of the Korea Patent Attorneys Association (KPAA) to maintain their capabilities to deal with new legal issues combined with the development of science and technology. (3) A qualification renewal system, which also requires patent attorneys to attend lectures prepared by KPAA and to pass a examination to renew their patent attorney qualification.


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