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
제28호 (9건)



리서치툴 특허와 그 보호의 정당성


한국지식재산학회 산업재산권 제28호 2009.04 pp.1-30

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Recent legislation and patent policies have a tendency to give strong protection to inventors broadening patent subject matters and strengthening patent rights. Research tool protection may be one good example reflected such a tendency. This article reviews issues surrounding research tools such as the definition, nature and patentability of research tools and justification of research tool patent. Research tools are broadly defined as the full range of resources that scientists use in the laboratory. However, research tools can be end products for research tool providers. That is, research tools are means to achieve research goals for users but are end products for providers. In protecting research tools under patent law, the first hurdle is whether they are patent subject matters. However, actually this is not an obstacle for patent protection subsequent to Diamond v. Chakrabarty where the Court find anything on earth to be patent subject matters. Even after Chakrabarty, research tools meet one obstacle for patent, utility requirement. U.S. PTO guidelines for examining utility and court decisions require the applicant to establish for the invention “specific and substantial utility that is credible. ” Accordingly, it is not enough for the applicant to prove that utilities of the invention are research intermediates, tools for further research and not the final product of any research effort. Even if research tools satisfy patent requirements, research tool patents are not always justified under patent law. Without research tool patent, research can be more competitive but less incentive is given to inventors. On the other hand, research tool patents make research controlled by tool patent holders. When inventors’ private interests are balanced with public interests in society, patent protection of research tools can be justifiable. The study on research tools is on the early stage. Despite that, because research tools deeply influence the development of research, international organizations and each country are making the policies of research tools which are carried into effect as a form of the guideline or directive.



표준과 특허 연계전략의 모색 : 기술혁신ㆍ연구개발ㆍ표준화 단계별

최동근, 홍성욱, 윤성환

한국지식재산학회 산업재산권 제28호 2009.04 pp.31-78

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There has been an increasing discussion and reseach interest about standardized patent (or patented standards) in terms of public policy and corporate strategy due to its emerging practical impacts on domestic and particularly global market. Based on case analysis and theory investigation in previous reseraches, this paper attempted to present strategic framework to identify interrelationship between standardization and patent considering technology innovation process (S-curve), R&D process (plan, research, development, evaluation) and standardization process(proposal, drafting, approval). The proposed framework could serve as a steping stone for business experts and researchers to have a better understanding about standardized patents and to build competitive strategy in global market.



영국 판례법에서의 상표보호법리의 형성에 관한 연구 : 불법행위로부터 재산권으로의 이동


한국지식재산학회 산업재산권 제28호 2009.04 pp.79-103

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The topic of this article is the theoretical basis of early English courts for the protection of trademarks from 16th to 19th centuries. This article specifically deals with five historical cases: Sandforth case (1584), Souther v. How (1618), Blanchard v. Hill (1742), Sykes v. Sykes (1824), and Leather Cloth Co. v. American Leather Cloth Co. (1863). After examining those cases and academic materials analyzing the cases, this article found the meaning of each case as follows: First, ‘Sandforth case’ provides with important information that the protection against trademark counterfeit was already established at the municipal or local courts, and the customs of those courts had often been accepted by the common law courts in the 16th century. Second, ‘Blanchard case,’ the first reported English decision clearly involving a claim based on use of a party’s trademark, shows why it was difficult for judges to hold that the court’s jurisdiction over a counterfeit mark was based on the property right in the mark. In the sixteenth and seventeenth centuries, English kings intervened regularly to protect marks by granting charters for exclusive uses of a particular mark for royal revenue. This made English law slow to develop property protection for trademarks. Third, ‘Sykes case’ is the first reported case squarely involving the protection of trademarks by the English common law court. And it is also the first case that the common law court held in favor of the plaintiff, the trademark holder, on the basis of the tort of deceit. Fourth, ‘Leather Cloth case,’ for the first time, based the jurisdiction of the court of equity on property. It held that fraud in the Defendant is not necessary for the exercise of that jurisdiction. And ultimately, the common law court accepted the equity court’s property approach.



상표법상 상품분류 및 유사판단제도의 운용상 문제점 및 개선방안연구


한국지식재산학회 산업재산권 제28호 2009.04 pp.105-147

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The “Examining Manual for the similarity of goods” of KIPO was made to increase fairness and objectivity of examining procedures by applying the basic principles in determining a similarity of goods. As the examiner’s conclusion is bound by the rules for the similarity of goods, trademark examiner do not proceed examination individually to determine whether goods are similar to each other when it comes to examination practices. Rather, the examiner in principle draws its conclusion through the presumption based on similar group codes which are crucial to define the scope of similarity of goods. Since the presumption mostly attributes to the valid conclusion, the determination of similarity of goods along with similar group codes gain strength in examinations. However, its conclusion is not always effective since the presumption based on similar group codes could be reversed by contrary evidences. The absence of experts who take full charge of goods trade has caused the lack of knowledge and information on the specific trade terms and conditions. Under this circumstance, KIPO has cursorily and indiscriminately conducted classification of goods and similar group codes that hardly reflected real goods trades from now on. In this regard, the similar group codes have limitations to catching up with the changes in goods and service industries according to the industry development and the changing culture. Considering the classification of goods is the rigid classification system that can not promptly respond to the market changes, it is imperative that the enhanced classification system should be designed to quickly reflect the ever changing market conditions in which new products are on the markets day by day. Therefore, the purpose of the study is to update the classification system which reflects well current trade situations on a regular basis, and seeks plans for the establishment of systematic and long lasting system, which enable the examining manual for similarity of goods to amend to reflect the changes in trade conditions.



한-GCC FTA와 저작권


한국지식재산학회 산업재산권 제28호 2009.04 pp.149-190

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In recent years, the proliferation of Free Trade Agreement (FTA) has become a global trend. Recent endeavors to pursue FTAs on the part of Korea do not imply a shift of the focus of her foreign economic policies, Korea, as major global trading nation, attaches great importance to the complementary nature of FTAs in promoting global trade liberalization and the multilateral trading system as a whole. Korea and Gulf Cooperation Council (GCC) countries held second round of talks over the Free Trade agreement (FTA) in March 2009, Riyadh. Last July, both sides decided to hold additional talks in order to seal the FTA deal by end of 2009. Most GCC countrie did not introduce a copyright code until recently. Historically, their legal system have applied the Islamic Law (Sharia) which does not provide authors of intellectual subjects protection for their literary, musical, dramatic or artistic works. However, the international community represented by organizations concerned with intellectual property rights and commerce such as the World Intellectual Property Organization (WIPO) and the World trade Organization (WTO) along with some countries interested in copyright protection such as the United States put their weight on GCC countries to establish the means of protection for copyright nationally and internationally. This article outlines copyright issues which will be raised in relation to the Korea-GCC FTA.



e스포츠경기 방송을 둘러싼 저작권쟁점 연구

남형두, 이일호

한국지식재산학회 산업재산권 제28호 2009.04 pp.191-227

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A trademark or trade mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities The Trade Mark Act (TMA) establishes a fundamental system of protection based on registration rather than use, while for protection under the UCPA the existence of a secondary meaning and actual likelihood of confusion is required. Trade mark rights do not, therefore, arise merely through the use of a trade mark, regardless of how well-known the mark may be. On the other hand, it is evident that system of first use adopted in other countries For example, the United States of America, the Philippines, Indonesia and all countries with a legal system based on the traditional British model..has had some influence on the Trade Mark Act. For example, according to Sec. 2 TMA, which requires distinctiveness as a requirement for registration, even a trade mark which is not distinct (and thus not registrable) may be registered provided the mark has become well-known among consumers by use and has consequently acquired "secondary meaning", Sec. 6(2). The TMA categorizes the following kinds of marks as lacking distinctiveness (Sec. 6(1)): - Generic or common names for the product; - Descriptive mark; - Conspicuous geographical names; - Common surnames or titles and - Simple or common marks. - Mark devoid of any distinctive chracter A trade mark acquires secondary meaning when, over time, consumers have grown to recognis ethe mark as identifying a particular company products. However, in such case, evidence verifying such use and notoriety should be submitted at the time of filing. In assessing whether a trade mark acquires secondary meaning, the grounds under Section(1) 1-7(taken together with Section 6(2)) should be justified on the basis of 'Freihaltebedurfnis'.



저작권집중관리 제도의 개선방안에 대한 소고 : 저작권관리사업법(안)을 중심으로

윤선희, 조용순

한국지식재산학회 산업재산권 제28호 2009.04 pp.229-262

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Copyright is a private right that provides a copyright holder creating a copyrighted work an exclusive right by law and thus in principle a holder of right individually exercises his right. However, it is quite inconvenient for a large number of right holders and users to locate each other and enter into negotiations and actually difficult for a right holder to manage his works, considering that there are various users, regional uses, and ways to use. Accordingly use of copyrighted works through collecting societies is necessary in order to effectively facilitate and manage them. The operation of collective management is slightly different from country to country, some regulated under copyright law and others regulated under special laws such as Japan and Germany. Korea has a legal system under which copyright trust services are regulated as a permission system and on the other hand copyright agency or brokerage services as a report system. Recently a considerable change as regards the use and circulation of copyrighted works has happened as digital network environment has been established. Under this change, a demand for copyright management of copyright holder has got diverse and the establishment of a new copyright management system utilizing outcomes of technological innovation has been developed. The objective of copyright collective management, the protection of copyright holders and assurance of convenience of users, remains unchanged, but it is also necessary that legal foundation appropriately cope with circumstantial changes. In addition, the operation scheme of copyright collective societies to permit societies in plural number such as the U.S. and Japan and leave their application to market principles should be taken into account, considering copyright holders’ longing for an amelioration of copyright collective management such as an abuse of prominent positions brought about by the application of a small number of copyright trust services. Relevantly, the enactment of the 『Copyright Management Business Law』 has been under discussion. This bill includes the improvement of copyright collective management, the embodimentof tasks and obligations of copyright reward management societies, the introduction of Extended Collective License, the arrangement of discussion and settlement system for copyright royalty, the introduction of copyright manager system and the establishment and operation of integrated network. However, collecting the opinions of interested parties is requisite ahead of the enactment of the new law. The government support is necessaryto have the system to resolve the handling and payment of royalties en bloc and apply it in substance for revitalization of use through collective societies and the minimum of government intervention needs to be kept up.



지적재산권의 독점규제법상 예외조항에 관한 고찰 : 미국법과 비교를 중심으로


한국지식재산학회 산업재산권 제28호 2009.04 pp.263-291

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The principal legal feature of intellectual property as property is the right to grant of exclusivity for special period of time. This right is intended to provide an incentive for entrepreneurs to innovate by rewarding those efforts with a period during which they can exclude others from making use of the fruits of their efforts. Thus, the degree of intellectual property protection is appropriate and necessary to spur innovation. However, the antitrust laws promote innovation and comsumer welfare by prohibiting certain action that may harm competition and create market power. The intellectual property rights and antitrust principles are inherently antagonistic, nevertheless, the intellectual property laws and antitrust laws share the common purpose of promoting innovation and enhancing consumer welfare. Some favor broader protections and less stringent antitrust constraints, and others view over protection of intellectual property as a real threat to competition. The core question has become ‘what level of intellectual property protection is sufficient to create a substantial incentive to innovate, without creating rights to exclude so broad as to seriously impair competition?’ This study is focus on determining whether a particular restraint in licensing the intellectual property is given per se or rule of reason treatment. In conclusion, the article 59 of Monopoly Regulation and Fair Trade Act should be revise to be accurated.



미국의 배제명령과 내국민대우원칙


한국지식재산학회 산업재산권 제28호 2009.04 pp.293-326

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On Jan. 1989, a dispute panel under the GATT found that Section 337 of the U.S. Tariff Act which provide the U.S. International Trade Commission may issue exclusion orders to certain imported goods infringing intellectual property rights violated international trade rules, especially national treatment doctrine of GATT article 4. Then U.S. Congress amended the article of Tariff Act. Early 2000, however the European Union (EU) alleged Section 337 of the act continued to violate U.S. obligations under the GATT and the TRIPs Agreement by not allowing national treatment to imported goods that allegedly infringe U.S. intellectual property rights. Specifically, the EU joining with Canada and Japan alleged that foreign companies confront with claims at the USITC as well as in U.S. federal courts, whereas U.S. firms may only be challenged in courts, and have fewer opportunities to encounter actions than domestic companies, because the article 337 of Tariff Act only governs imported goods, not exported goods, and therefore foreign companies are treated less favor than U.S. domestic companies. This double opportunity is a clear advantage for the domestic company then, would have to be regarded as a denial of national treatment to imported goods. Conclusively, it must not be ignored that successive enforcements are a way in which the complainant can involve the foreign respondent in lengthy and costly the proceeding and the litigation under USITC and U.S. Court. However, the article 337 of Tariff Act also protect foreign companies registering their intellectual property in the U.S. Also the enforcement of intellectual property against foreign infringement is not under the same situation as against the domestic infringement. Then, the article 337 of Tariff Act allegedly satisfy the necessary exceptions under article 20 (d) of GATT and article 3 of the TRIPs Agreement.


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