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
제47호 (7건)



특허법상 컴퓨터프로그램의 물건성에 관한 소고 - 서울중앙지방법원 2015.2.17. 선고 2013가합546931 판결을 중심으로-


한국지식재산학회 산업재산권 제47호 2015.08 pp.1-36

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17th of February this year saw the ruling of the Seoul Central District Court that Viber Media, Inc.(hereinafter called “Viber”) of Israel should not distribute its Viber application(hereinafter called “Viber App”) in Korea on account of infringing a patent relating to computer program. This case, involving SK Telecom’s patented invention “Mobile Communication Terminal Having Address Book Reorganizing Function for Instant Messenger Service, and Method for Reorganizing Address Book Using the Same”, deals with the claim of indirect infringement against the mobile communication terminal as well as the claim of indirect or direct infringement against the Method for Reorganizing Address Book of the said patented invention by Viber distributing Viber App in Korea. In response, the Court, on the assumption that Viber App is considered a product in that it is sotored on the apparatus or media, judged whether the distribution on internet of Viber App by Viber corresponded to indirect infringement under the law 127-1 with regard to mobile communication terminal. In this respect, there has been a considerable controversy about the Patentability of Computer Programs as the Product under the Patent Law In particular, on the motion of a National Assembly member Dong-Wan Kim on October 1, 2014 about a partial amendment proposal(Bill No. 11949) of patent law, the dispute about the Patentability of Computer Programs as the Product widened considerably. Therefore, this study delves into Examination Guidelines on computer software related inventions as well as legislation talks pertaining to computer software, and further into the Court’s ruling about the Patentability of Computer Programs as the Product to discuss whether Viber App is viewed as a product at this judgement, namely whether the computer program intended to be stored on media is to be appreciated as a product.



공유특허의 분할청구에 관한 비교법적 고찰 - 대법원 2013다41578 판결을 중심으로 -


한국지식재산학회 산업재산권 제47호 2015.08 pp.37-84

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Recently the Supreme Court in Korea made an important decision on the nature of co-ownership of patents which has been disputed not only in academic circles but also in practical level in the patent area. This case decided on whether the object of co-ownership of patents is regarded either as partnership-ownership or co-ownership. In actual, the Supreme Court in Korea has ever interpreted the nature of co-ownership of patents as partnership-ownership as well as co-ownership. The above-mentioned case has obviously judged that the nature of co-ownership of patents is regarded as co-ownership, and therefore, now it is possible for a co-owner to demand a partition of a object jointly owned. As the object jointly owned is distributed, a partition method to be currently allowed is price partition or price compensation partition. However, the Supreme Court did not rule regarding the partition method, which is left unsettled. It will bring about a serious conflict of interests between a co-owner who does not want to use the patented invention any more and other co-owners who continuously want to use it. In my opinion, the other co-owners who do not want the object of co-ownership of patents to be divided by partition should, at least, have an opportunity to preferentially purchase the very share of a co-owner who has filed an application for partition with a court. Such a right is ruled in the French Code of Intellectual Property. De lege ferenda we should give careful consideration to introduce such a right of preempt into the Korea Patent Act.



공유특허의 법적 성격 및 지분분할에 관한 고찰


한국지식재산학회 산업재산권 제47호 2015.08 pp.85-122

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There are certain limitations on a jointly-owned patent right. Except for the case of working the patent invention by himself/herself, each joint owner is required to have the consent of the other joint-owners in order to shares transfer, establishment of a pledge right, exclusive license and non-exclusive license, registration of extension of term and adjudication request. In addition, where a trial is requested against any of the joint owners of a patent right, all the joint owners must be made defendants. These limitations are due to the fact that a patent right is a right to intangible property. The legal characteristics of a joint-ownership of a patent right has been understood as a type of partnership-ownership. However, according to the recent court’s ruling, it is possible for a joint owner of a patent right to claim for auction and segmentation. That is, joint-owners of a patent right such as universities and government-funded research institute who lack capacity to work the patent invention by themselves, may pursue claim for segmentation of their rights. This may result in a serious damage to the other joint-owners of the patent rights such as companies. If one of the joint-owners of a patent pursue claim for segmentation, that may result in disposition of the patent by auction, infringing upon other joint-owners’ rights to work that patent. Therefore, an amendment to the Patent Act is necessary in order to alleviate such potential damages to the other joint-owners and the Korean Intellectual Property Office(KIPO)’s proposal for an amendment to the Patent Act seems timely. Yet, there are certain concerns over the KIPO’s amendment proposal regarding the jointly-owned patent rights. In an attempt to solve the problem resulting from the recent court’s decision, the amendment could undermine the legal certainty or the rationality of the institution as a whole. That is, when a jointly-owned patent right is disposed by auction as in the court case, the other joint-owners can be sufficiently protected by setting an onerous statutory non-exclusive license instead of what the current amendment proposes. In addition to the statutory non-exclusive license, granting redemption of shares to the joint-owners can also prevent the unintended dispose of the jointly-owned patent rights. Therefore, these two alternatives should also be taken into consideration in the amendment.



특허 권리범위확인심판 유용론

정차호, 이혜라

한국지식재산학회 산업재산권 제47호 2015.08 pp.123-162

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The Republic of Korea has had a patent scope declaration trial system. Some arguments to abolish the system have been continually raised on the following reasons: a holding of the trial has no binding effect; character of the trial is unclear; similar systems in other countries are rare. This paper demonstrates Korea’s patent scope declaration trial system is very useful for patent customers based on the following five reasons. Firstly, the patent scope declaration trial has been much loved by customers. Regarding patent and utility model scope declaration trial, each year more than 500 requests have been steadily filed. Though 11% of the requests were related to patent infringement litigations, remaining 89% of the requests were not related to such litigations. Therefore the trials have been used to confirm success of designing around, to establish powerful information for negotiation, etc. Secondly, the United Kingdom non-infringement declaration system is being emphasized recently. The UK Intellectual Property Office, based on the belief that the system is useful to customers, develops and expands the system. Thirdly, because the approval-patent linkage system was completely enforced from March 15, 2015, the scope declaration system has become more useful. A patentee may request a positive scope declaration trial to enjoy benefits of automatic stay system, and a generic drug developer may request a negative scope declaration trial to acquire generic exclusivity. Fourthly, two bills which endow the Patent Court exclusive jurisdiction on appealed patent cases are pending at the Korea National Assembly in June 2015, and the bills are highly likely to be passed. Upon the passage, a decision of the Patent Court in a trial revocation litigation appealed from a decision entered by a patent scope declaration trial will have deciding effect against a patent infringement appeal case, therefore a patent scope declaration trial and a subsequent trial revocation litigation will be more important. Fifthly, a bill which introduces damages (up to three times) enhancement system into the Korea Patent Act is pending at the Korea National Assembly in June 2015. Even though it is not likely for the bill to be passed in this term, this author believes and hopes that the bill be passed in the near future. Under the damages enhancement system, a company which intends to prevent willful infringement finding may more actively exploit the scope declaration trial. Based on the above five reasons, the scope declaration trial may keep enhancing its popularity among patent customers. From now on, being away from useless discussion on usefulness of the system, we must try to develop it as a more user-friendly system.



일본의 판정제도에 관한 고찰


한국지식재산학회 산업재산권 제47호 2015.08 pp.163-196

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This article studies the opinion system of Japanese Patent Act. Replacing the trial to confirm the scope of a patent right, the opinion system of Japanese Patent Act was introduced in 1959. The technical scope of a patent right is much more difficult to determine compared to the scope of a right for a tangible article, which accordingly gives rise to more disputes. Also, when working a certain technology, the status of both the patentee and third parties would be unstable if its technical scope were unclear. As a matter of course, such a scope is something that should ultimately be determined in court, but in some situations it would be beneficial if an impartial advisory opinion could be given by the competent authority relating to the patented technology in advance, or while the case is pending. The system established to that end is the opinion system. The proprietor of a patent or any other person may request the patent office to issue an advisory opinion on the technical scope of a patented invention. The discussion of the opinion system has been done in conjunction with that of whether to abolish the trial to confirm the scope of a patent right. Even though designed to replace the trial to confirm the scope of a patent right, the opinion system has a large difference in their nature. The discussion of the opinion system and that of the trial to confirm the scope of a patent right must be carried out at a different point. In other words, whether to improve or to repeal the trial to confirm the scope of a patent right that determined by the Patent Office should be approached from the aspect of the principle of authority distribution and the usefulness. On the other hand, the introduction and operation of opinion system by the Patent Office, should be judged from the aspect of its utility properties. Furthermore admitting that the system for determining the protective scope of th patented invention at the stage before infringement action or in preparation of business, improvement or selection is required as this most appropriate scheme. It must be determined whether or not to abolish the system itself. Also, if abolish systems, by evaluating the confusion associated with it, an alternative to this must be discussed. Although there is no legal binding force, opinion system of Japanese Patent Office has received the social respect. Introducing the opinion system of Japanese Patent Office, we should consider whether those functions of opinion system could be realized in our system.



디자인 보호법제간 경합 현황과 경합의 처리를 둘러싼 제 문제


한국지식재산학회 산업재산권 제47호 2015.08 pp.197-254

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Industrial Design may be protected by several different forms of intellectual property rights(IPRs) such as design right, copyright, and trademark including protection from the Unfair Competition. Recently, these competitive and cumulative protections by the different IPRs have been increased and may cause some troubles. For example, cumulative design protection by the different IPRs may cause troubles in respect of the competition policy, legal purpose of each intellectual property law and require resolution policy demarcating a line between IPRs. First of all, it is discussed that the intellectual property protection regime to protect a design and mutual boundaries of each legal systems, and a conceptual framework to select a legal system strategically for the creators and users‘ point of view. It will be reviewed what kind of the pros and cons of each design protection in legal aspects for selecting a more effective method. Each type of designs such as a fine artistic design, typical industrial products design, applied art design, trade-dress design are divided into consideration to catch the differences in legal competitive and cumulative protection patterns they could reveal in general. Secondly, the patterns of Competitive Protections of a design are to be divided ‘Cumulative Protection System’ into ‘ Legal Conflicts between IPRs. Regarding ‘Cumulative Protection System’, this article discusses the main reasons of persuiting Cumulative Protection and the demarcation principles in order to avoid its systematic problems and conflicts under these dual protection systems. In particular, the principle of ‘functionality doctrine’ and the copyrightability of useful articles(applied arts design) under the “separability standard” that is still working as an important demarcation principle. Furthermore, this article will analyze the provision for resolving conflicts between IPRs for design protection, which is providing that prior rights holder‘s consent is prerequisite for the use of their registered rights afterwards. Finally, after assessment of the laws and regulaions coordianting its conflicts under design law whether they are working as a reasonable standards, this article will propose a workable method for the desirable directions of current design protection system to be revised in the future for the solution of conflicts between IPRs for design protection.



대학의 산학협력성과의 영향요인에 대한 실증연구 - 특허/기술이전/창업성과를 중심으로 -


한국지식재산학회 산업재산권 제47호 2015.08 pp.255-290

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This study analyzed the effect of determinant factors of university- industry cooperation on the performance of patent, technology transfer and spin-off in Korea. The empirical study was based on the dataset from 152 universities in Korea. The university-industry cooperation performance model presented as the determinant factors and performance outcomes was analyzed through a multiple linear regression model and a negative binomial regression model. The determinant factors of university-industry cooperation were composed of three factors that included research competency, a organizational factor and a regional factor. The performance of university-industry cooperation was presented as patent, technology transfer and spin-off, respectively. The findings of this study show that research competency influence the performance of patent, technology transfer and spin-off positively. In addition, a organizational factor also appears to have a positive effect on the performance of patent, technology transfer and spin-off. However, the effect of a regional factor on spin-off performance is not statistically meaningful whereas it affects the performance of patent and technology transfer positively.


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