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
제27호 (10건)



법학전문대학원 특성화 교육프로그램에 관한 논의 : 지적재산권 관련 교과목 편성ㆍ운영을 중심으로


한국지식재산학회 산업재산권 제27호 2008.12 pp.1-28

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People say that newly start for legal education in Korea makes korean society bring bright future. The new system of legal education focuses on being the lawyer through the education which has the curriculum mixed legal theory and its practice. The specialized education programs of Law Schools in Korea are various subject-matters to have the educational needs of their own specialized areas. This article examines closely about Intellectual Property Rights(IPRs) related Curriculum and their Implementation of seven Law Schools which are going to provide the educational program with respect to IPRs, scientific technology, and cultural works. Embarking upon this legal education system, these Law Schools need the cooperation and competition for getting the distinct achievement. That is to cowrite IPRs textbooks, to have an affiliated body for collaboration, and to exchange information for academic research and teaching methods.



진보성의 심사기준과 인용문헌의 조합에 관한 연구


한국지식재산학회 산업재산권 제27호 2008.12 pp.29-67

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The intellectual property right is a very ideational and metaphysical concept in its interpretation of a right scope as compared to a corporeal property right because it is basically designed to protect a useful intellectual property in a human culture or an industry domain. In the present study, an inventive judgment method being applied by the patent offices of Korea, the US, Japan and EPO will be studied based on a precedent and an examination standard. In case of Korea, according to the examination handbook, when an inventive step is judged, it can be judged in combination with at least two cited references, but the combination is limited to a case that those who skilled in the art can easily combine at the time when a corresponding invention is made. In addition, according to a precedent by the supreme court, it discloses a certain standard with respect to a combination of the cited references as it is needed to disclose a motive that those who skilled in the art can easily combine since at least two cited references have the same technical field, and the technical problems to be resolved are same so as to judge an inventive step based on a combination of at least two cited references. In case of the US, ‘Graham v. Deere, Test’ is generally adapted when a non-obviousness is judged in the patent office and the court. Namely, an inventive step test of a recent KSR decision is a little applied. According to a decision by the supreme court, it is judged that when a certain case is rejected based on a combination of at least two cited references, it is needed to provide the examiner with a motivation, suggestion or teaching in the cited reference, and the technical field should be same for citing the references, and the cited reference should belong to the field related with a problem to be resolved in a corresponding application. In the Guidelines for Examination in the EPO, PSA is actually applied when judging an inventive step, and it is stipulated that only one or multiple cited references can be applied, provided that according to the EU appeal tribunal, when an invention step is judged, it is principle to adapt one or two cited references, and it is excluded that an inventive step is neglected by a combination of at least thee cited references. The inventive step test actually adapted by the Japan patent office and court is basically the same as the Graham v. Deere, Test and PSA of EPO, but the inventive step test of Japan is more detail and logical as compared to the US and EPO. It is general that the inventive step judgment actually adapted by the patent offices and courts of almost developed countries limit the number of combined cited references to two so as to reject an application based on the lack in the inventive step, provided that it is proper that an inventive step rejection is a little limitedly adapted in a special case when at least three cited references are applied. According to the statistics of the Korean patent office, the total numbers of the applications in 2004 are 423,081 by Japan, 351,431 by the US, 140,115 by Korea, 130,133 by China, and 59,234 by Germany, respectively. Korea is the third most application country following Japan and the US. In an actual work of the patent examination and patent decision and the patent infringement suit, an inventive step judgment is a controversial issue while occupying a lot of portions. So, it should be proper and objective. In this matter, in order to support the Patent Act article 42(3) which became effective in 2007, Korea should establish a new standard in the inventive step judgment based on a precedent of the Supreme Court like the PSA of EPO. In particular, almost inventive step judgments are done based on a combination of two or three cited references, so it is needed to make a standard with respect to a combination of the cited references and a scope of the number of cited references clear, and a universal and proper examination standard should be set.



생산방법의 추정과 확인대상발명의 특정


한국지식재산학회 산업재산권 제27호 2008.12 pp.69-102

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Article 140(3) of Korean Patent Act states that when a trial is requested to confirm the scope of a patent right under Article 135(1), the explanation and the necessary drawing(s) that can be compared with the patented invention must be attached to the written request.Herein, the explanation and the necessary drawing(s) that can be compared with the patented invention are defined as a confirmation subject invention. A related article, Korean Patent Act article 129, states that when a product is identical to another product manufactured by a patented process, the former is presumed to have been manufactured by the patented process of the latter unless the former is publicly known before the filing of the patent application. That is, in this case, the former product is presumed to be under the scope of the patented process. The article is prepared since it is difficult to provide evidence proving the manufacturing process of other persons. When a patentee exercises the patent right, the patentee should provide evidence proving the infringement by an alleged infringer; however, in the case where the patented invention is a process, it is more difficult to provide evidence proving the infringement as compared with the case where the patented invention is a product. Therefore, the patentee may presume and specify the manufacturing process of the alleged infringer and assert the infringement by an alleged infringer; however, if the alleged infringer denies the infringement, the patentee should provide evidence. Therefore, to easily specify a product of an infringer for comparing the product of the infringer with a product manufactured by a patented process, it is necessary to revise Article 42(3) of Korean Patent Act so that Article 42(3) states that a definite description of a productmanufactured by a claimed process should be included in a patent specification. In addition, it is considered that the explanation and the drawing(s) of a confirmation subject invention are necessary to be prepared in the same formats as claim (s) and drawing(s) of a patent specification so as to prevent unnecessary arguments. Therefore, it is necessary to revise a related article so that requirements of a patent specification are applied mutatis mutandis to specification of a confirmation subject invention.



라이센서의 파산과 라이센시의 법적 보호에 관한 연구


한국지식재산학회 산업재산권 제27호 2008.12 pp.103-132

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While insolvency of the person or the corporate is being increased, it is expected that insolvency of intellectual property right holders will be also increased. In particular, the need to legally protect a licensee in the area of intellectual property is being more required when a licensor goes into bankruptcy. However, the Korean Consolidated Insolvency Act as of April 1, 2006 does not have any regulations as to protecting the licensee in the bankruptcy of the patentee, even though the U.S. Intellectual Property and Federal Bankruptcy Code has been already established in 1988, and the Japanese Bankruptcy Law in 2004. These mainly focus on protecting the licensee, who puts in the relative weaker in comparison with the licensor in the license contract. Under these circumstances, it is also required to regulate stipulations on legally protecting the licensee in the concerned Act in Korea as soon as possible, when considering the situation that bankruptcy shall be more and more increased in Korean society in the future. Through thoroughly analyzing and reviewing concerned preceding Acts of countries such as the U.S., Japan, Germany, we should stipulate proper provisions to legally protect the licensees in the Korean Consolidated Insolvency Act.




특허권소진의 의의와 그 논거에 관한 연구


한국지식재산학회 산업재산권 제27호 2008.12 pp.133-172

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As globalized, economy has led each country to be concerned about their own patent law issue. As BBS case(Japan), the issue of parallel imports is a matter of interpretation of domestic patent law. Accordingly, principle of patent independence and territoriality are not relevant to the analysis of parallel imports. For example, BBS case(Tokyo high court, Japan) reads each country to be concerned about international exhaustion of right. Therefor each country accepts the doctrine of international exhaustion for their purpose of Patent law. In the beginning, Korean government prohibit the parallel importation of genuine goods to evade unnecessary trade friction and to protect the intellectual property rights. however Korean government accepted the parallel importation of genuine goods partly through amendment of the Customs Service regulations in 1995. The acceptance of the doctrine of international exhaustion will depend on each country’s level of economic development. In this paper, we focus on the meaning and type of exhaustion of patent right. And we will introduce about the scope, requirement, effect, and standard of infringement judgment next time.



특허침해소송에 관한 연구 : 미국제도의 특색과 그 효율적 대응방안을 중심으로


한국지식재산학회 산업재산권 제27호 2008.12 pp.173-207

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We are now living in an era of technology and information which is based on cutting-edge technology and significance of intangible property is undeniable. Despite its form, whether it is owned by an individual or a nation, the matter of intellectual property protection is being more important as modern society develops. At the same time, more and more attention is focused on exercise and protection of intellectual property rights, eruption of conflict, and ways to solve conflicts. Development of modern industry and high technology engaged with economic profits between nations causes international conflicts related to intellectual property rights. Main causes are technical differences between nations, gap of information technology, dissimilarity in means of protecting intellectual properties, superiority and inferiority of economic status, and etc. Moreover, in the aspect of international commerce, efforts of maintaining and securing intellectual property in advanced countries can be seen in intellectual property protection rights and foreign restrictions. Therefore, conflicts related to intellectual properties between nations are becoming more frequent. But as a means of resolving international conflicts, USA is asserting one-sided protection of its intellectual property and exercising powerful protection laws to secure higher position in its technology and economy over other nations. Especially, these actions are seriously influencing profits of other nations because USA’s immense patent market, procedures of achieving patent, and conflict resolution procedures are being applied to other foreign industries as well. At this point of time when Korea ’s economy and technology is developing, it is necessary to act strongly against USA’s actions in order to secure advantageous position in patent infringement litigation. Moreover, by understanding USA’s one- sided patent infringement litigation procedures thoroughly, it might be possible for us to step ahead in the era of severe patent competition. Thus, in this lecture we will look deeper into characteristics of USA’s patent infringement litigation so that the person who violated patent laws can stand in a more advantageous position when conflicts related to patent infringement arise. Also, by studying USA’s patent laws and judicial precedents, it might be helpful to those who are in a status of patent infringement or potential litigations.



무효사유가 존재하는 특허권의 행사와 권리남용의 항변


한국지식재산학회 산업재산권 제27호 2008.12 pp.209-260

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If the grounds for invalidation exist in the patent right, it is desirable to restrict exercising patent right. The method to apply defense of abuse of right to civil law is conceivable to restrict exercising patent right. However, in exercising patent right for which grounds for invalidation exist, applying defense of abuse of right to civil law is problematic in theoretic consistency. The method of recognizing defense of invalidity of patent is also conceivable. However, defense of invalidity of patent is also unacceptable in the present institution where trial for invalidation exists, because it is very likely that the issue of inconsistent judgment arises in infringement lawsuit and trial for invalidation. After all, the most feasible method is to recognize the defense of restricting exercise of right. This is a defense that can eliminate demerit of defense of invalidity of patent and highlight merit. In this case, two requirements are necessary to recognize the defense of restricting exercise of right. So-called requirement of obviousness, one means recognition that patent could be invalidated in the procedure of invalid judgment. The other, called requirement of non-existence of specific situation, means that there is no possibility of eliminating the grounds for invalidation of the patent.



특허무효와 특허실시료 반환과의 관계

유대종, 김윤명

한국지식재산학회 산업재산권 제27호 2008.12 pp.261-284

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Usually, a property or good is transferred based on a valid legal relationship. In such case, the law of unjust enrichment does not work. In a case when a legal relation is invalid or inexistent, the law of unjust enrichment works. A patentee may grant an exclusive license or non-exclusive license of the patent right to others. A exclusive or nonexclusive licensee is entitled to work the patented invention commercially or industrially to the extent prescribed in Patent Act or allowed by the license contract. This study is dealing with invalid of patent and repayment of royalty. Where a trial decision invalidating a patent has become final, the patent right is deemed never to have existed. In accordance with, the patentee is no longer capable of enjoying the patent right. Royalty that have been paid may be repaid if licensee requested.



특허풀의 경제적 효과 및 핵심성공요인


한국지식재산학회 산업재산권 제27호 2008.12 pp.285-316

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Nowadays, technological assets are recognized as principal determinants of firms' competitiveness and thus firms all over the world invest much resources to develop new technology or innovation. As technology in general is getting more advanced and complicated, there may be many owners with Intellectual Property Rights(IPRs) in relation to particular product or service. In this aspects, the patent pooling have a fast growing interest as a good alternative means for decreasing transaction costs between IPRs owners and promoting technology commercialization and diffusion. The patent pool is basically a kind of inter IPR owners' cooperation involving many stakeholder. Therefore, the patent pooling may broadly influence on the technological strategy and/or innovation activities of firms as well as the related industry and market. On the contrary there are much legal discussion about the patent pool, economists and management scholars do not have a much interest in the particular licensing mechanism. However, according to recent economic literatures, a patent pool consisting of complementary technologies is generally recognized as procompetitive by competition authorities and scholars because of their positive effects on final goods price and industry output. Even though some scholars insist that the patent pool consisting of complementary technologies affect negatively on the firms' innovation activities depending upon the number of innovators and essential IPRs, it is theoretically supported that the patent pool can have positive influence on the innovation market as well as final goods market. Although we recognize the positive effects of patent pool, there may be various side effects if we permit unconditionally the patent pool. Therefore, we should prepare a socially optimal mechanism that induces the welfare-increasing patent pools but prevent the welfare-decreasing patent pools. In my opinion, both “Openness” in membership and “Independent licensing” of members is a useful tool of the socially optimal mechanism. In addition, it is necessary that we control effectively behaviors of potential outsider in the pooling activities if we activate successfully the welfare-increasing patent pools. For this purpose, it is reasonable that we consider the intervention of a standard-setting organizations(SSO) or third-party licensing administration institute in the patent pooling activities. In particular, these SSO or third-party licensing administration institute should implement mainly function in relating to pricing of IPRs such as the evaluation of essential technologies, appropriate royalty rate, etc.



기업의 특허상호실시계약(Cross License Agreement)에 관한 법적 연구


한국지식재산학회 산업재산권 제27호 2008.12 pp.317-355

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At a recent, hundreds of news on a cross license agreement signed between firms has been reported. The cross license which the cross grants are symmetrical, against a normal license agreement is one of technology transfers through technical cooperation. The number of the cross licensing deals has been increasing in technical advanced countries, in particular USA, EU, JAPAN. Fousing electronics industry, competitors have entered into cross licenses to eliminate the possibility of patent infringement litigation between them. On the other hand, the domestic manufacturers have been using the cross license as a strategic tool for a technical cooperation. In spite of the growing importance of the cross license agreement, Korea’s legislative system is weak in dealing with this issue. The cross license agreement is basically similar to a normal license agreement except for some particularities; a license exchange, a technical cooperation method between the same kind of firms, etc. From this point of view, the study corresponding to the growing issues on cross license deals is to focus on the background of a expansive trend, the legal nature, the object and terms of licensing. Considering the parties keep contract of the cross license agreement or the details under wraps, there are limitations to data accessibility to obtain the written contracts.


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