무효심결 예고제도 도입방안 연구

유철종 충남대학교 특허법무대학원 2016 국내석사

Now Korean patent trial(invalidation trial, correction(post-amendment) trial) and litigation system is too complicated. If all patent invalidation attack and defense in patent invalidation trial procedure is possible, patentee will not need a trial for correction(post-amendment) under the cancellation litigation of patent invalidation trial decision. But patentee needs the trial for correction(post-amendment) as an invalidation defense means. Because an invalidation trial claimant submits the new evidence, which is not submitted to the Intellectual Property Trial and Appeal Board, to the Patent Court under the cancellation litigation of patent invalidation trial decision. In March 2015, Korean Intellectual Property Office preannounced a revised bill in order to amend the patent act with regard to the patent invalidation trial and correction(post-amendment) trial. The revised bill of patent act includes introducing an invalidation trial decision notice and patent opposition. Japan patent office already revised the patent act to introduce invalidation trial decision notice in 2011. I review a pre-announcement of legislation of the patent act and analyze the problem of the invalidation trial decision notice drafting and discover the idea of patent opposition drafting. So I suggest a modified invalidation trial decision notice. Concretely, where a board of three or five administrative patent judges intends to render a decision to invalidate the patent right, they shall notify the patentee of the grounds therefor and provide the patentee an opportunity to present his/her written opinions and corrections to the specification or drawings of a patented invention within a fixed period. If so, it will be effective to introduce the indirect hearing range limit of the litigation. I also suggest revising to reduce the correction chance of patent during invalidation trial of patent. And I suggest that the patentee can’t request the trial for correction before the patent invalidation decision has become final and binding. If so, patent trial(invalidation, correction(post-amendment)) and litigation system will be simplified.

特許發明의 强制實施에 관한 硏究

김우순 忠南大學校 特許法務大學院 2002 국내석사

The idea of balancing the benefits for patentee with those for the public should be a key concept in the design and implementation of Intellectual Property Rights legislation. With a view to promoting the development of technology and industry, Patents Law grants patentees an exclusive right to exploit the patented invention. For the purpose of the same goal, on the other hand, Patents Law imposes a few limits upon the exclusive right of patentees' duration of the right, exception for experiments, and compulsory licenses. Compulsory license refers to the practice of governments to compel the transfer, from a patentee to a third party, of some or all of the patentee's right to produce a patented product, or use a patented process. Article 107 of Patents Law provides that, where a patented invention has not been worked for more than three consecutive years in Korea, except in the case of natural disaster, unavoidable circumstances or other justifiable reasons, a person who desires to work the patented invention may request the patentee or exclusive licensee of such invention a consultation for the consent of a non-exclusive license. Compulsory licenses are also available under Article 107 where the patented invention has not been exploited on a considerable commercial scale or has not. satisfied the domestic demand on adequate degree and conditions in Korea consecutively for three or more years without any justifiable reason,' where the non-commercial exploitation of the patented invention is indispensable for the public interest; and where failure to exploit the patented invention is found by an administrative entity or judiciary as constituting anticompetitive practices. In addition to compulsory licenses under Article 107, Patents Law provides for compulsory licenses under Article 138: the patentee, exclusive or non-exclusive licensee of the second patent may apply for an adjudication on the grant of a non-exclusive license of the first, patent to the extent necessary for exploiting his second patent. Comparative analysis of compulsory licenses under the Patents Law of Korea with those under Western jurisdiction has demonstrated that there are several uncertainties and problems over the terms and conditions of compulsory licenses in Korea. First of all, it; is not clear whether compulsory licenses are available under Article 107 in cases where a patentee imports his patented products and distribute into Korea and does not grant a third party any license to exploit the patented invention. Majority of scholars in Korea regard importation without manufacturing patented invention in Korea as an abuse of patent right and accordingly interpret the Patents Law as allowing for compulsory licenses in such cases. In my opinion is, by contrast, that since the definition of exploitation under the Patents Law include importation there appears to be no abuse by a patentee who simply imports his patented invention and, accordingly, no reason for granting a license to a third party. Secondly, unlike compulsory licenses under Article 138, those under Article 107 may be granted by the Commissioner of the Korean Industrial Property Office without any due process. While appeals against any adjudication under Article 138 may be brought to the Patent Court, those against the decision by the Commissioner under Article 107 must go to the Court for Administrative Law. It is finally submitted in this study that statutory provisions on compulsory licenses are designed as an efficient means of promoting goals of the Patents Law and, also, that terms, conditions and procedures for compulsory licenses will have to be amended to make a better balance between the interests of patentees and those of potential licenses.

特許性判斷과 特許侵害判斷에 있어서 特許請求範圍의 解釋에 관한 硏究

이풍우 忠南大學敎 特許法武大學院 2003 국내석사

This thesis refers to a study on claim interpretation in patentability accessment and infringement judgment focused on the relation to the latest cases. The purpose of the patent system induces the technique development and the motive of the invention by open the technique to the public, and gives the inventor the monopoly for economic profit. The applicant must draft the specification which is a research achievements of the inventor to do patent application to achieve such purpose. The specification take two kind of roles which are technique documentation to open clearly to the other and monopoly right to insist the privilege at same time. it consists of detailed description and claim range of invention. Meanwhile detailed description on the specification take consequently the mission as the technique documentation, and the claim must possess the subject to be protected to the patent because of the protection range of the invention is determined by the statement subject of the claims. so the applicant ought to obligate to draft the specification with detailed description and claim range of invention clearly, and the judge are responsible to interpret the claim accurately and to confirm its the range with the technique contents. but because of the applicant's experience with knowledge lacks, he can not simply and clearly draft the specification includes detailed description and claim range of invention. Actually the sentence in claim which to be recorded actually is vague, they can say that situation to be require of interpreting is most. if the interpreting of the claim is changed by the judge because of the description of indistinctness such claim, the applicant or the patentee can not take suitable protection about own invention. It is very important task to stage of patentability and lawsuit which we decide the infringement permission. We briefly refer to the research product around the claim interpretation in patentability accessment and infringement judgment in this paper to solve such problems. As interpreting theory of the Patent claim range, Supreme Court has introduced the interpreting theory about Patent claim range, it had adopted the center limitation theory which evaluates important value a technique concept until former time end of '90, After that time, has been adopted the circumstance limitation theory which evaluates important value to technique structure element and doctrine of equivalent. Also, As we compare patentability accessment with infringement judgment interpreting, they are very dissimilar each other. Because patentability accessment has established priority principle of the claim, adopted specification and drawing consideration's principle exceptionally in the interpreting of patentability accessment, infringement judgment has been adopted doctrine of equivalent with file wrapper estoppel totally in the interpreting of infringement judgment. Consequently we have arranged range and method of research as follows to refer concretely above mentioned. Range and method of research of this paper arrange published domestic and foreign documents, mange the interpreting theory, its concept and various principles for the claim interpretation based on cases of Supreme Court, defines that we compare and analyze the difference of interpreting focused on the latest cases based on the circumstance limitation theory which evaluates important value to technique structure element. The system of this paper consists of as follows; In Chapter Ⅰ , We describe introduction includes purpose, range and method of this paper research. In Chapter Ⅱ, We describe the concept, the history and law regulations about claim range interpretation. In Chapter Ⅲ, We describe and analyze the necessity of the claim interpretation, its the general principle and the interpreting theory of the claim. In Chapter Ⅳ, We describe interpretation of the novelty, the inventive step and the description method, In Chapter Ⅴ , We look into the claim interpretation to decision infringement judgment through the latest cases of Supreme Court. In Chapter Ⅵ, We discuss examples of the viewpoint of the patentability accessment and infringement judgment. In Chapter Ⅶ, We try to take the conclusion down to refer rational alternative what is the interpreting for desirable claim judgment.

知識情報化社會 發展에 따른 特許法 硏究 : 비즈니스 方法(BM) 特許를 中心으로

조원석 忠南大學校 特許法武大學院 2003 국내석사

The contents of this paper include the business method patent which has recently become a new global interest and controversy in the field of intellectual property. Business method, from a conservative point of view, means a method or a style of managing a business, and generally, such business method failed to meet the conditions of an invention. But in case a business method is combined with inventions of other categories such as softwares using mathematical algorithm, the conditions are met and a patent can be granted. Recently, electric commerce through the internet has developed fast. Nothing that patent application related to such business are increasing, business method patent can be defined as "an exclusive grant to an invention which has the combination of business method based on the technologies of computers, communication, and internet with data process procedures, data structure and attribute". Such business method patent, along with the invention of softwares using mathematic algorithm, changed the history of patent. The significance lies in the acknowledgement of the invention of managing method which was not recognized as an invention before. In fact , unlike the patent law in Korea and in Japan, in the United States where the target of patent is not limited, the patent boundaries have been broaden through the Federal State Court's patent permission to softwares using mathematical algorithm and rulings of approval of patents to managing methods combined with softwares. And these examples have great effects on other countries patent policies. But business method patent is still the topic of many controversies concerning whether or not it should be concluded as an "invention", the extent of permission of its monopoly and exclusive rights, and the term of protection. The phenomena can be understood as ungrounded apprehensions for granting patent to a whole new field. Since business method is now approved and acknowledged as an invention through lawful actions, we must grope our way toward an under standing of the situation. For that purpose, the thesis presents the examples of disputes and court decisions of the United States which is the vanguard in this field. First, it examined the Patent Bureau's approval background of business method combined with softwares and The Federal State Court's rulings and its trend through the two historical events in the qualification of an invention, the lawsuits of State Street Bank vs Signature Financial Group, AT&T vs Excel in the United States and other main lawsuits of Europe, Japan and our nation. Secondly, it examined the efforts of individual companies to protect business model patent and their strategic policies through the representative dispute examples. The meaning of patent to a company whose business is based on internet is very special. The reason is that the acquisition of a patent in internet business guarantees an exclusive status for certain amount of time in that particular field. Certainly strategic patent application and patent violation of related companies will continuously occur, which only indicates the power of business method patent in the internet business. Therefore, each country including the United States is developing strategic patent policies on business method, and related companies are preparing corresponding strategies themselves for possible future disputes. Considering that we should aim at an intellectual intensive industry that creates high additional value, a new intellectual property policy of business method, continuous concern of related companies, and active support from the government and the Patent Bureau are essential.

植物特許制度의 改善方案 硏究

이호조 忠南大學校 特許法務大學院 2004 국내석사

In the Korean patent law, Article 31 is the only provision in the field of plant patent. This provision refers that a person who invents a variety of plants that reproduces itself asexually may obtain a plant patent. The meaning of this provision has been controversial continuously. The most important thing among the controversies is whether the provision, Article 31, is dependent or independent form other provisions. When the first action in lawmaking for protecting plant varieties was taken place in 1946, the plant patent system in the US code 35 was almost perfectly introduced into the Korean patent law as it was. In US code 35, plant patent is said as a kind of patent for protecting only plant varieties. However, all the provisions introduced from US code 35 in 1946 were deleted in 1961 except for the provision describing the subject of protection. The remained provision is same to the present Article 31 with the exception of the provisory clause. There are difficulties in finding out the reason why the only provision, Article 31, was remained. In the first place, we can merely infer the meaning of this provision by making an observation in the worldwide trends in the protection system for plant varieties at that time. After the rediscovery for Mendel's law at 1900, the plant breeding was started in a scientific way and thereby the new problems in protecting the new varieties bred by scientific methods such as crossing, selection was followed. However, the new plant varieties were not protected by patent law because they were not satisfactory to the requirements in description, repeatability, or inventive step as an invention. Because of these reasons, many countries introduced a new suigeneris system that is different form the general patent. Plant Patent Act was established in USA at 1930 and UPOV convention, a model for plant varieties' protection law, was concluded by European countries at 1961. The protection for plant varieties by the general patent was started in the 1980s since when biotechnology has become a tool in plant breeding. Plant improved by genetic engineering such as gene recombination, cell fusion and transformation was satisfactory to the said requirements. Considering the history of plant protection, the provision restricting the subject in the plant patent law (1961) was not necessary since, in that law, no plant varieties was able to be a protectable subject meeting the requirements of the general patent at that time. Therefore, the existing Article 31 can be concluded to be nothing but a provision to declare the fact that the new varieties can be protected. As the result, we can either introduce either the plant patent system with complementation the Article 31 or delete the article 31. But if the plant patent system is introduced, there will be two protection systems for asexually reproducing plant varieties, the plant patent act and plant varieties protection law. Considering the problem of double protection system, it would be desirable to deleting the existing Article 31. Consequently, plant inventions by new biotechnology can be applied to the general patent for the protection and plant varieties by the conventional breeding method can be legitimate to the plant variety protection system.

特許實體法條約(案) 主要爭點에 관한 硏究

전현진 忠南大學校 特許法務大學院 2006 국내석사

With the accelaration of borderlessness in technology and economy, inventors of all nations long for a global level of patent system whose provisions are uniformly set not only procedurally but also substantively, which enables the acquisition of patent right worldwide by a single patent application. Triggered by the U.S. proposal on international uniformization of grace period rules in the early 1980s, efforts for international harmonization of substantive patent requirements seemed to be completed with 「diplomatic conference for the conclusion of a treaty supplimenting. the Paris Convention as far as patents are concerned」 in 1991. However, it was suspended by the U.S. adhering to its first-to-invent system, and after that Patent Law Treaty(PLT) was adopted in June 2000, which harmonized only aspects of procedural patent requirements. At the fourth session in November 2000, Standing Committee on the Law of Patents(SCP) proposed items related to further substantive harmonization of international patent law during its future sessions: prior art, novelty, inventive-step, industrial applicability, sufficiency of disclosure and drafting and interpretation of claims. Possible issues on patentable subject matter are biotechnology inventions, computer software related inventions and business methods. Questions on sufficiency of technical character of these inventions are raised, and it is another controversial matter whether defining patentable inventions with technical character is necessary or not. In regard of patentability, it is necessary to discuss different standards for determination of patentability in each country. The U.S. has grace period provisions under first-to-invent system: however, the EU has limited non-prejudicial disclosure rules under absolute novelty concept. For this reason, there are some arguments about whether grace period provisions should be included, and if so, which level they would be. The U.S strongly proposes enlarging patentable subject matters and lowering patentability requirements. The EU desires stricter criterion for grace period and wants the U.S. to accept first-to-file system. Developing countries want provisions allowing exceptions to patentability, and wish genetic resources and traditional knowledge to be included in patentable subject matter. Whether SPLT comes to a settlement or not depends on that these different attitudes is well-harmonized with each other. This dissertation studies on the solution for unifying the Korean patent system by examining the main regulations of draft Substantive Patent Law Treaty(SPLT) and comparing these regulations with patent-related laws in Korea.

知識基盤經濟時代의 産業財産權制度의 發展方向 연구 : 特許制度를 중심으로

이익희 忠南大學校 特許法務大學院 2003 국내석사

The era of the knowledge-based economy is vastly different from bygone eras. Since knowledge has become a major means of production, in the 21st century the owners of intellectual property (IP) can gain added value regardless of place and time. Furthermore, inefficiencies in trade are being overcome and the competition in various fields is opened up because physical obstacles have disappeared. All these changes form a new order for economic activities. Human resources are the most important capital for the creation and dissemination of knowledge, which is the driving force of the new era. The future therefore depends on training personnel to improving IP, supplementing relevant laws and extending new IPs for wealth creation and international competitiveness. The core of IP is science and technology, and the basic system for developing of science and technology is the system of intellectual property rights (IPRs). Every country has affirmed the economic efficiency of IP and implemented a strategic pro-patent policy of industrial development based on IPRs. This thesis looks at the meaning, current status and legal principles of IPRs. Focusing on the patent system, it analyzes current IPR issues and discerns the desirable direction for the knowledge-based era. Internationally, the IPR system is likely to become easier, cheaper and more convenient. For patents, the procedure of the Patent Law Treaty are ready to be enforced. The contents of the treaty are now being actively discussed and the range of IPRs is being continuously widened. Despite its history, the Republic of Korea has become a major patent-filing country due to a better understanding of the importance of IPRs. However, most IP applications are limited to secondary technologies, which have a lower economic value than the original technologies from which they are derived. The IPR system should be able to cope with global changes and trends and have a strategic view that gives priority to national interests. Analysis and reflection should be given to the current system, especially in the relation to the shift from conservative protection to constructive protection, the shift from imitation to creation, and an appropriate system of reformation. It is time to consider separating the utility model system from the patent system. The efficiency of the utility model system should be surveyed to determine if the additional costs have any benefits. The problems of quick-registration System for utility models also need to be solved. Without exaggeration, the development of IPRs depends on two things: how to relieve IPR holders from acts of infringement and how to protect IPRs. Furthermore, the role of the Patent Court needs to be strengthened so that infringement suits can be heard in the Patent Court and patent attorneys can participate in the proceedings. For more specialized and efficient IP management, as well as a uniform and coherent IP policy, a single organization should be responsible for administering all IP-related business. The Korean Intellectual Property Office should be strengthened in its capacity. Since management of the IP system influences the future, the IP system, along with its cause and effect, should continue to be studied and improved.

의약품특허보호와 공중보건의 균형 : TRIPS 협정 체제를 중심으로

조명선 忠南大學校 特許法務大學院 2003 국내석사

This study was focused on the effects of pharmaceutical patents on public health and the balance between those, mostly based on the TRIPS Agreement regime. The TRIPS Agreement was adopted at the Uruguay Round in 1994 and entered into force on January 1 in 1995. It established the minimum standards of protection for intellectual property right holders which must be provided by the national law of each WTO members for each category of intellectual property rights. Although it has been considered as one of the success stories of Uruguay Round, it had been criticized as being an obstacle to development and to the pursuit of public health policies by developing and the least developed countries which have been faced to the serious horror from the AIDS and other epidemics. Especially, the debate on the benefits of patents have been focused on the area of pharmaceutical patents. Developing and the least developed countries have viewed that compulsory licensing and parallel imports are permissible objectives without violating the TRIPS Agreement. And they demanded weakening of the provisions on compulsory licenses and longer transitional periods. In spite of the international debates and divergent positions among the member countries regarding these issues, a Declaration on TRIPS and Public health was issued by a consensus of all WTO members at the Doha Ministerial meeting in Qatar in November 2001. In this study, specific characteristics of pharmaceutical patents were reviewed as well as their effects on the society to understand the present issues related on the pharmaceutical patents and public health. Also, through analyzing the legal status of the Doha Declaration and the way how the member countries have solved the flexibility on the interpretation of the Agreement in light of its objectives and principals, it was attempted to understand how the WTO members tried to maintain the balance between the rights of patent holders and public health especially in terms of compulsory licensing and parallel imports.

IT분야를 중심으로 특허풀제도의 개선방안에 관한 연구

김용재 충남대학교 특허법무대학원 2006 국내석사

As industrial society has being rapidly changed into knowledge-based society, intangible intellectual property becomes a core factor of a nation's competitiveness instead of tangible goods. Intangible intellectual property is invented into various forms such as patent, utility model, trade mark, industrial design, copyright, computer program etc,. and among those, the front-runner in creating the knowledge-based society is patent which protects a high degree of technical ideas. In order to keep up with the trend of the times, USA has strongly pushed ahead with the Pro-patent policy since the 1990s, and Japan has also devoted all its energies to increasing its patent competitiveness by establishing a strategical council on intellectual property which the prime minister presides over. The major worldwide companies have come not to regard the cost for acquiring and managing the patent securement as a waste of money. They have recognized patent as an indispensable for success and have been engrossed in protecting patent more aggressively. Recently, as the technologies have been subdivided and several patent are bound up together in a specific technological goods, the recognition that only one patent can not guarantee for competitive power has spread wide and the several owners of patent involved into a specific technological goods start to entrust their patent into agencies on shares, which is named as "Patent Pool" system. The Patent Pool system is an outgrowth of the "alliance of strong companies“ strategy for companies on the same level or profitable for each other to form a cooperation so as to diminish the risk arising from plowing a lonely furrow and to prevent other companies' market approach. But the Patent Pool isn't helpful only to licensers, but also useful to the licensees who are the customer of Patent Pool in terms of reducing burdens of negotiating with each individual licensers. This trend to form Patent Pool is conspicuous in the area of IT. In the area of IT, as the technology life cycle is relatively short and complicated technologies are tangled up like cobwebs, the success in the market cannot be guaranteed unless the structure of license is drastically simplified through Patent Pool. Actually the majority of representative international Patent Pools such as MPEG LA, VIA Licensing, DVD 4C, DVD 7C, 3G3P, IEEE1394 LA focus on the field of IT. Considering the characteristic of IT field in which service is provied by the connection among several networks, the international standardization is requested in IT-related field more strongly than any other fields, and the connection with international standard is essential to guarantee competitive power. So, in the case of core technology of IT-related field, major multinational companies make every effort not only to acquire patent, but also for it to be adopted as an international standard, because when a specific technology is adopted as an international standard, the economic effect will be great. And companies which inserted their patent in international standard cooperate in horizontal or vertical aspects so as to bind their essential patents inevitable to implement the said international standard to Patent Pool. Eventually the Patent Pool is used as a tool to strengthen the market power of the said companies. This study investigates the positive and negative respects of Patent Pool and examines what matters are to be considered so as to overcome its negative respects and spotlight its positive ones, that is to say, not to impede sound competitive surroundings and to be settled down as an useful method of achieving a win-win situation for both of the licensers and licensees. In the concrete, this study analyzes the desirable and institutional surroundings and the strategy to complete Patent Pool's portfolio, which is needed in order for Patent Pool not to be degraded to a means of strengthening the licensers' monopoly system through the private possession of a standard, and deals with the desirable policy for treatment of patent found in the process of standardization. 지금 세계는 산업사회에서 지식기반사회로 빠르게 전환되고 있으며, 이에 발맞추어 국가경쟁력의 핵심요소도 유형의 재화가 아닌 기술력으로 대표되는 무형의 지식자산으로부터 창출되고 있다. 무형의 지식자산은 특허, 실용신안, 상표, 디자인, 저작권, 컴퓨터프로그램 등 여러 형태로 창출 및 활용되고 있는데, 그중에서도 고도한 기술적 사상을 보호하기 위한 특허권이야말로 지식기반사회를 열어가는 핵심 키워드라고 볼 수 있다. 이러한 추세를 반영하여 미국은 일찌감치 지난 90년대부터 친특허 정책을 강하게 드라이브하고 있으며, 일본도 2002년부터 총리주재의 지식재산전략회의를 창설하여 특허 경쟁력 강화에 총력을 기울이고 있다. 세계의 유수한 기업들 역시 특허권 확보를 위해 소요되는 비용을 더 이상 소모적인 비용으로 평가절하 하지 않고, 오히려 특허권이야말로 성공을 위한 필수조건으로 인식하고 더욱 공격적으로 특허권 확보를 위해 열중하고 있다. 한편, 최근 들어 기술이 세분화됨에 따라 어떠한 하나의 기술상품에 여러 개의 특허권이 동시에 결부되는 추세가 뚜렷하게 진행되고 있어 특허권의 라이센싱 측면에 있어서는 더 이상 나홀로 특허만으로는 확실한 경쟁력을 담보할 수 없다는 인식이 확산되고 있으며, 이에 따라 특정 기술상품과 연관된 다수의 특허권자가 보유 특허권들을 대행사에 공동으로 위탁하여 통합 관리하는 ‘특허풀’ 시스템이 유행처럼 번지고 있다. 이는 비슷한 경쟁력을 보유한 기업들이나 규모는 차이가 나도 서로에게 이익을 줄 수 있는 기업들이 협력체를 구성함으로써, 독자적인 행보를 취했을 때 감당해야만 하는 리스크를 줄이고 여타 기업의 시장진입을 차단하기 위한 ‘강자연합’의 전략에 기인한다. 그렇다고 해서 특허풀이 특허풀의 구성 주체인 라이센서에게만 유용한 도구는 아니다. 즉 특허풀의 이용 주체이며 상대적 약자라고 할 수 있는 라이센시에게도 다수의 특허권자와의 지리한 라이센싱 협상 부담을 줄여주는 등 여러 가지 장점을 제공하기 때문이다. 이러한 특허풀 결성 추세는 IT분야에서 두드러지게 나타나고 있는데, 그 이유는 IT분야의 경우 라이프 사이클이 짧은데다가 복잡한 기술이 거미줄처럼 세밀하게 연계되어 있어서 특허풀을 통해 라이센스 체계를 획기적으로 간소화시키지 않는 한 시장에서의 성공을 장담할 수 없기 때문이다. 실제로 현재까지 등장한 MPEG LA, VIA Licensing, DVD 4C, DVD 7C, 3G3P, IEEE1394 LA 등 대표적인 국제 특허풀의 면면을 보면 절대다수가 IT분야에 집중되어 있음은 상기 논리를 반증한다. 한편, IT분야는 異種 네트워크간의 연결 형태로 서비스가 제공되는 기술특성상 상호연동을 위해 국제 표준화의 필요성이 그 어느 분야보다 강하게 요청되기 때문에, 특허권의 경쟁력 확보를 위해서는 국제 표준과의 연계가 필수적이다. 따라서, 선진 다국적 기업은 핵심 IT기술의 경우 기술개발 초기단계에서부터 특허권 확보는 물론이고 이를 국제 표준규격으로 채택하기 위하여 총력을 기울이고 있는데, 이는 특정 기술이 국제 표준규격으로 채택될 경우 지대한 경제적인 파급효과를 기대할 수 있기 때문이다. 아울러, 국제 표준규격에 자사의 특허권을 반영한 기업간의 수평 내지는 수직적 연합을 통해 상기 국제 표준규격의 실시를 위해 이용할 수밖에 없는 필수 특허가 특허풀이라는 테두리안에 묶여서, 결국 특허풀이 이들 기업들의 시장 지배력을 강화시키는 도구로 활용되고 있다. 따라서 본 연구에서는 특허풀의 긍정적 측면 및 부정적 측면을 살펴보고, 부정적 측면을 극복하고 긍정적 측면을 부각시키기 위해서는, 즉 건전한 경쟁 환경을 저해하지 않고 라이센서와 라이센시 모두가 Win-Win하기 위한 유용한 도구로서 자리매김하기 위해서는 어떠한 사항들이 고려되어야 하는지에 대해 살펴보았다. 구체적으로, 특허풀이 표준의 사유화 등을 통해 라이센서의 독점 체제를 강화시키는 도구로 전락하지 않기 위해 요청되는 바람직한 제도적 환경 및 포트폴리오 구성 전략, 그리고 표준화 과정 중 발견되는 특허권의 바람직한 처리방안 등을 중심으로 정리 및 분석하였다.

출원일(Filing date) 설정에 관한 특허제도 연구

송상용 忠南大學校 特許法務大學院 2013 국내석사

In current times, in the market economy of endless competition, obtaining patents earlier than others and maintaining a competitive advantage has become an important business strategy. In the first-to-file system, quickly to secure the filing-date of an patent application is very important to the applicant. If you are an applicant to obtain patent in countries, the application filing with individual patent system of each country can be a difficulty. Because each country's patent system is specified differently. Depending on the reason, the demand harmonization of patent law system arose, and the Patent Law Treaty (PLT) was adopted in 2000. PLT has achieved the harmonization in patent application procedure. The most noticeable feature of PLT is Filing date of Article 5. An applicant can set up the filing date of an application by providing to the Office an express or implicit indication to the effect that the elements are intended to be an application, indications allowing the identity of the applicant to established or allowing the applicant to the contacted by the Office, and a part which on the face of it appears to be a description. It means that applicants can file applications for the purpose fo setting up filing dates with no claims, no fees, and no representatives. It is tremendously advantageous for applicants to set up filing dates quickly with less efforts. Looking at the patent system of IP5(EPO, USPTO, CIPO. JPO, KIPO), EPO has already applied PLT in 2000. And in the case of the USPTO, PLTIA(Patent Law Treaties Implementation Act), trying to introduce patent law treaty, is signed by the President in March 2013. Also in the case of KIPO, On the preparation for joining PLT(Patent Law Treaty), the review and revision of the patent law is active. CIPO and JPO are still under consideration. but, possibility of joining PLT is sufficient. Therefore, to analyze and examine the contents of the PLT(Article 5) is important.