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
제29호 (9건)



동아시아의 경제협력과 지적재산권 제도의 조화


한국지식재산학회 산업재산권 제29호 2009.08 pp.1-28

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This is the paper on East Asia Economic Cooperation and Intellectual Property Law Harmonization. The close cooperation among Korea, China and Japan is being made steady progress. In near future east asia will be closer than now. At that time the different Intellectual Property system will hinder the economic relation and cooperation. So the harmonization of IP system is necessary. This is how to achieve that goal. They say that there are four forms of harmonization: EU, NAFTA, TRIPs-plus, Mutual exhortation. (1) EU type: The most extreme form is full policy harmonization, in which all members adopt the same standards. This is the stated goal of European Union in IPRs, toward which considerable progress has been made. (2) NAFTA type: Second is to commit to high minimum standards, which may exceed the standards set out in TRIPs, but not to achieve harmonization. (3) TRIPs-plus type: Third is to adopt somewhat lower standards that are consistent with TRIPs but again allow policy divergence. (4) Mutual exhortation type: Finally, there is the approach based on mutual exhortation to proceed as is appropriate to each nation, without formal negotiations on IPRs. When closer than now, EU system will be the ideal form in East Asia. So this paper study EU system. But even though we want the EU type, the time and adequate step is needed. This paper propose the three step. First is the substantive law harmonization, second the adjective law harmonization, third the structural law harmonization.



특허발명의 실시행위 중 양도의 청약에 대한 고찰


한국지식재산학회 산업재산권 제29호 2009.08 pp.29-85

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In 1995, the Patent Act was amended to conform to the TRIPs Agreement. The amendment has brought about broadening of patentee’s rights. In particular, a patentee’s grant was expanded to encompass the right to exclude others from offering the patented invention for assignment. With legislative history silent as to the meaning of the new provision and no case law construing it, there is little guidance in predicting (1) what is an ‘offering for assignment’; (2) whether there is infringement only if the contemplated assignment occurs; and (3) whether domestic offers to assign abroad infringes. This article analyzes foreign case law in an effort to answer these questions. In the United Kingdom, the Patent Acts 1977 did include ‘offer to dispose of’ infringement. This was so framed as to have, as nearly as practicable, the same effect in the U.K. as the corresponding provisions of the Community Patent Convention. The Chancery Division of the Patents Court held that (1) an advertisement or any negotiation without a firm offer constitutes an ‘offer to dispose of”; (2) offers to dispose of must be read as meaning offers in the U.K. to dispose of the product in the U.K.; and (3) advertisements for post-patent expiration sales would not infringe. In the United States, Congress amended 35 U.S.C. §271 in 1994, adding ‘offer to sell’ to the list of infringing activities. Congress also added section §271(i), which limits infringement via offer to sell. In 2000, the Federal Circuit held that the meaning of ‘offer to sell’ is to be interpreted according to its ordinary meaning in contract law. While the Federal Circuit has yet to address the issue of how to interpret ‘offer to sell’ provision with respect to foreign sales, there is a split in authority at the district court level. There also is a split on the issue of whether §271(i)’s limiting language suggests that an offer to sell is an infringement only if an actual sale occurs before the expiration of the patent. In 2008, the Federal Circuit allowed lost profit damages based on defendant’s ‘offer to sell’ infringing product. In Japan, the Patent Act was amended, adding ‘offering for assignment’ to the list of infringing activities. Although there seems to be no case law construing the meaning of ‘offering for assignment’, the Japanese Patent Office guideline suggests that the meaning of offer should be construed to include promotional efforts and advertising. Foreign case law and corresponding provision suggest that the term ‘contractual offer’ in section 2 of the Korean Patent Act should be corrected to the lay meaning ‘offer.’ Next, since requiring that both the offer to sell and the actual sale take place would make the ‘offer to sell’ language superfluous, they should be treated as separate and distinct exclusive rights. Finally, with the increasing interdependence of global economy, flexible approach rather than a strict territorial approach would provide balance between risks exposing the patentee to losses in the world market and the extraterritorial reach of the Patent Act.



부분디자인의 유사 판단에 관한 연구


한국지식재산학회 산업재산권 제29호 2009.08 pp.87-133

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In the similarity judgment of the partial design, how the broken line, which was depicted on a drawing, will be treated becomes a problem. In relation to this, there is confrontation between the opinion of aiming to handle broken line importantly and the opinion of aiming to ignoring this. However, the broken line is an element that decides on location, size, and range in partial design, thereby being reasonable to consider this in the similarity judgment. That is because the location, size, and range in partial design may lead to occurrence of difference in light of aesthetic impression and to difference even in the appearance of confounding articles. Additionally in the similarity judgment of partial design, there is necessity for examining whether the article, which becomes object of design, is similar or not and whether the form in a part itself is similar or not. However, the function or the use in a part has no need to be considered in the similarity judgment. That is because the partial imitation may be made easily when article, which becomes the object of design, is same even in case of being different in partial function or use, and because there is necessity for preventing this.



희석행위금지와 상표의 ‘설명적 사용’ : 포장ㆍ용기의 변경을 중심으로


한국지식재산학회 산업재산권 제29호 2009.08 pp.135-158

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The topic of this article is the referential use of a trademark by defendants who repackaged or rebottled plaintiffs’ genuine products. The issue is whether such a use constitutes trademark infringement, specially under the anti-dilution provisions. To find the answer to the issue, Part Ⅱ of this article examines ‘Prestonettes case,’ which shows clear contrast between the two theories of trademark protection; tort- based one for consumer protection and property-based one for the protection of trademark holder. In Part Ⅲ, it is discussed whether a referential use of a trademark can survive the anti-dilution protection in Korea. And this article concludes the followings: First, according to tort-based theory for the trademark protection, a referential use is not even within the exclusivity of a trademark right. On the other hand, according to property-based theory, a referential use comes within the exclusivity of the right and it can be allowed only if there is no likelihood of harm to consumers. Second, under the U.S. protection of a famous trademark against dilution, a referential use is not an infringement of a trademark right, not because it is a non-commercial use, but because of a policy reason that balances the protection of property right and free speech interests. Third, Korea Supreme Court also sees a referential use as lying outside of the right of a registered trademark. It held that a referential use is not a ‘trademark use’ under the Trademark Act. Fourth, a referential use should be interpreted as surviving the anti-dilution provision of Korea Unfair Competition Prevention Act because it is a nontrademark use. And the exemption is based on the ‘fair business practices,’ not on its non-commercial nature.



퍼블리시티권에 관한 연구 : 부정경쟁방지법을 중심으로


한국지식재산학회 산업재산권 제29호 2009.08 pp.159-184

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This is study about the right of publicity which is generally defined as an individual’s right to control and profit from the commercial use of his/her name. In America, there is no uniform federal law which protect the individual’s right of publicity but either common law or statutory law protect the right of publicity. In Germany personality rights are protected under the German civil code. In Japan protection for the right of publicity is protected as an outgrowth of general tort law. The right of publicity is recognized as both a moral right and an economic right. In Korea, there has been many cases where celebrities and sports stars claim their right of publicity against various types of unauthorised commercial use of their identity. This study suggest the protection of the right of publicity by amending Unfair Competition Law. As every situation varies depending cases, ruling by general provision would be a good solution to deals with this kind of dispute.



인터넷 계량제(Internet Metering)가 저작권법상 창작활동 및 정보문화에 미치는 영향


한국지식재산학회 산업재산권 제29호 2009.08 pp.185-220

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Internet Metering is one of service models in which the internet service provider(ISP) such as KT, SK Broadband in Korea, and AT&T, Time Warner Cable, CamCast in America tracks bandwidth use and charges high traffic customers accordingly. In June 2008, Time Warner Cable began testing Internet Metering in Beaumont, Texas. To illustrate a typical example of this, a customer selects a service package with a flat rate up to a specified limit and then pays additional fees beyond the limit. For approaching to this Metering, ISP veils the raising fee rather than advancing service quality for customers. Due to the fact that the paying system bases on the quantity of Internet traffic, a customer would be willing to reduce the time and traffic to internet access, and then web-based content provider would try to upload contents without giving heavy traffic to a customer under a broadband cap. Internet Metering could influence on the authorship of copyrighted works and the information culture on cyberspace. Under this circumstance ISP has become a gatekeeper of the internet to make decision whether to open door and appreciate the information society. It means that the free access to the internet conducts the social and cultural advance via the digital convergency. The ‘free’ comes without a burden rather than being gratuitous. Internet Metering may be the burden to a customer, and a content provider, but for putting the appropriate policy with respect to free access to the internet. It needs legislation, if necessary.



소프트웨어 문헌정보의 DB구축과 활용방안


한국지식재산학회 산업재산권 제29호 2009.08 pp.221-251

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Database (DB) construction of software (SW) literature information is required as means for preventing the creation of false patents due to incomplete patent examination of SW related inventions and the occurrence of patent disputes due to such false patents, and for preventing double investment and duplicate researchthat may be caused by the defective search for prior art literatures. For this, in this study, the trend of the SW industry and the status of patent applications and patent registrations of SW related inventions have been investigated and analyzed, and based on this, the subject and the range of the SW related technology and literature information have been prescribed. Also, the DB construction and utilization status of SW literature information in U.S.A., Japan, and the like, has been investigated and analyzed, and based on this, the necessity and the method for the DB construction of SW literature information in Korea have been examined. Last, the utilization scheme of the constructed SW literature information has been examined. A DB search system for SW literature information should be constructed so that KIPO examiners and SW developers can use it more easily. For example, in association with thebasic search system that classifies SW literature information on the basis of the International Patent Classification (IPC) established by the World Intellectual Property Organization (WIPO) under the influence of UN, a system, which makes it possible to conduct searches on the basis of diverse bibliographic information, such as the kind of SW literature information, free word, contents of literature, index, abstract, and the like, should be constructed.



유럽에서의 특허권 라이선스의 거절과 경쟁법상 지배적 지위의 남용에 관한 연구


한국지식재산학회 산업재산권 제29호 2009.08 pp.253-286

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The refusal to grant a licence, which is the straightforward exercise of intellectual property rights, cannot in itself constitute an abusive conduct. However, under exceptional circumstances, it can amount to an abuse, which is prohibited by Article 82 of the EC Treaty. The European Courts have established the exceptional circumstances under which the refusal to license intellectual property rights constitutes an abuse of a dominant position. The exceptional circumstances are: (1) the product or technology in question must be indispensable to carrying on a particular business; (2) the refusal is such as to exclude all competition on a secondary market; (3) the refusal prevents the appearance of a new product for which there is a potential consumer demand; and (4) the refusal is not objectively justified. Even though European Courts have applied the principles of the exceptional circumstances to some cases, there are uncertainties in interpreting the exceptional circumstances because the meaning of new products or services is not clear and what constitutes the objective justification is ambiguous. As far as patents are concerned, care has to be paid in applying the exceptional circumstances. Patents are generally the outcome of considerable research and development of a private undertaking and are closely related to the incentives to invent and innovate. Unlike the copyright which subsisted in TV listings, patent rights are essential factors in technical innovation in that they encourage the economic entities to participate in the innovative activities by providing exclusive rights to patent owners. Unlike the brick structure in IMS, a patent is created from the risk taking effort of private undertakings and thus is privately owned property. It may be argued that uniform application of the exceptional circumstances to any sorts of intellectual property rights is not appropriate. Rather, it seems persuasive to argue that it is necessary to take into consideration the nature of the subject matters protected by intellectual property laws. As for patents, which are generally created by the considerable research and development of a private undertaking, the application of the exceptional circumstances should be restricted and, care should be taken in order not to punish the successful innovator by imposing improper duty.



특허ㆍ저작권자의 시장선점 행위에 대한 독점규제법상 규제


한국지식재산학회 산업재산권 제29호 2009.08 pp.287-340

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Patents and copyrights have been held to be a social tool to induce technology innovation, thus increasing social welfare. In reality, the patents and copyright could be used as the assets to exclude efficient competitors. The proprietors of patent and copyright have employed a variety of exclusive license practices affecting competition in a relevant market. In many case relating patent and copyright proprietors ’ exclusive license terms, courts have found their practices to establish the violation of antitrust law. In particular, the proprietors’ strategy which raise rivals’ costs increase significantly can constitute to be illegal under the antitrust law. In the Korean monopoly regulation and unfair practice law, if the market dominant patents and copyright proprietors, which are vertically integrated, use their rights to exclude competitors in a vertically related market, it may be considered as a market dominant’s abusing its power. However, the exclusionary right performers still may insist the reasonableness of their behaviors. In the antitrust law perspectives, the reasonableness should be evaluated with respect to the role of patent and copyright right contributing to technology development. Moreover, the amount of the effect increasing social welfare by the patent and copyright right can be different due to the characteristics of an industry and the technology.


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