첨단기술 어디까지 왔나 - 자동화기술관련발명의 출원 및 기술동향(4)

김원준 한국발명진흥회 1986 發明特許 Vol.11 No.12

특허침해소송에서 무효항변에 관한 고찰

김원준 전남대학교 법학연구소 2008 법학논총 Vol.28 No.2

The intellectual property right system is an important law system while developing a learning, art and science technology as well as enhancing an international compatibility. The paten right is a kind of right which might be regulated by means of an administrative measure, so-called a patent right provision from the patent office. In case that infringement litigation is fled in relation with a registered patent right, its protective scope is finally determined by means of a decision of the court which governs a detailed contents. In case that an invention patent registered through an intensive examination by the patent office has a certain invalidation reason, a recognition that the invention patent is considered as a valid right until it is invalidated by means of an invalidation decision from the Korean Patent Tribunal is depending on a proper action with respect to an administrative activity. The registration of a patent might be considered as patent examiner’s decision to granting a patent in the Korean Patent Office. Once a patent is regally registered, it is given an effective force. In this case, even when there is an invalidation reason in its patent right, it is recognized that the effectiveness of a patent right has an effective right until it is invalidated trough a patent invalidation decision. In case of Korea, when an inventive step is lack during a invalidation pleading for patent infringement litigation, a right distribution principle is not adapted. According to the Meminger decision by the Supreme Court, it might be interpreted that an adaptation of a right distribution principle might be excluded when there is a significant invalidation reason due to a lack of an inventive step in a invalidation pleading. However, in a civil litigation procedure, since the court is forced to judge based on a truth by a corresponding person and evidence by adapting a pleading principle, a technical content of a corresponding patent and a cited invention should be technically analyzed, and then an inventive step should be considered. So, the judge has a lot of burden in judgment. Japanese government established the Intellectual Property High Court, also a patent attorney having a certain qualification as a proxy of patent infringement litigation is given a litigation pleading right so as to resolve an excusive technical problem in the patent infringement litigation. In recent years, Japan has regulated a law for limiting a right execution of a patent right owner in consideration with many opinions from academic fields based on the Kilby case from the Supreme Court. So, it seems that a controversial argument on a pleading action of a patent invalidation or a pleading action of an over execution of right during a patent infringement litigation procedure has been substantially ended. In the Japanese court, when a corresponding patent lacks a novelty or a corresponding patent lacks an inventive step, when it is a clear invalidation reason of the patent, a plaintiff’s suit is turned down with a summary that it corresponds to an over execution of right. In Korea, it might be considered that an analyzing ability of an infringement litigation court concerning a patent judgment is largely enhanced, and a technical performance is enhanced along with the Meminger decision of the Supreme Court. So, in case that it is clear that an inventive step lacks during a pleading action of a patent invalidation or a pleading action of a right over use, the court might turn down a plaintiff’s suit. However, it is preferred that a patent attorney might be given a litigation proxy right in a patent infringement litigation like Japan so as to reinforce professionalism during representation in suit. And it is preferably needed to regulate a right for limiting a right enforcement of a patent right owner so as to more clarify a system on a invalidation pleading action during patent infringement litigation. The intellectual property right system is an important law system while developing a learning, art and science technology as well as enhancing an international compatibility. The paten right is a kind of right which might be regulated by means of an administrative measure, so-called a patent right provision from the patent office. In case that infringement litigation is fled in relation with a registered patent right, its protective scope is finally determined by means of a decision of the court which governs a detailed contents. In case that an invention patent registered through an intensive examination by the patent office has a certain invalidation reason, a recognition that the invention patent is considered as a valid right until it is invalidated by means of an invalidation decision from the Korean Patent Tribunal is depending on a proper action with respect to an administrative activity. The registration of a patent might be considered as patent examiner’s decision to granting a patent in the Korean Patent Office. Once a patent is regally registered, it is given an effective force. In this case, even when there is an invalidation reason in its patent right, it is recognized that the effectiveness of a patent right has an effective right until it is invalidated trough a patent invalidation decision. In case of Korea, when an inventive step is lack during a invalidation pleading for patent infringement litigation, a right distribution principle is not adapted. According to the Meminger decision by the Supreme Court, it might be interpreted that an adaptation of a right distribution principle might be excluded when there is a significant invalidation reason due to a lack of an inventive step in a invalidation pleading. However, in a civil litigation procedure, since the court is forced to judge based on a truth by a corresponding person and evidence by adapting a pleading principle, a technical content of a corresponding patent and a cited invention should be technically analyzed, and then an inventive step should be considered. So, the judge has a lot of burden in judgment. Japanese government established the Intellectual Property High Court, also a patent attorney having a certain qualification as a proxy of patent infringement litigation is given a litigation pleading right so as to resolve an excusive technical problem in the patent infringement litigation. In recent years, Japan has regulated a law for limiting a right execution of a patent right owner in consideration with many opinions from academic fields based on the Kilby case from the Supreme Court. So, it seems that a controversial argument on a pleading action of a patent invalidation or a pleading action of an over execution of right during a patent infringement litigation procedure has been substantially ended. In the Japanese court, when a corresponding patent lacks a novelty or a corresponding patent lacks an inventive step, when it is a clear invalidation reason of the patent, a plaintiff’s suit is turned down with a summary that it corresponds to an over execution of right. In Korea, it might be considered that an analyzing ability of an infringement litigation court concerning a patent judgment is largely enhanced, and a technical performance is enhanced along with the Meminger decision of the Supreme Court. So, in case that it is clear that an inventive step lacks during a pleading action of a patent invalidation or a pleading action of a right over use, the court might turn down a plaintiff’s suit. However, it is preferred that a patent attorney might be given a litigation proxy right in a patent infringement litigation like Japan so as to reinforce professionalism during representation in suit. And it is preferably needed to regulate a right for limiting a right enforcement of a patent right owner so as to more clarify a system on a invalidation pleading action during patent infringement litigation.

미국의 Pro-patent정책과 특허법 개혁안

김원준 전남대학교 법학연구소 2009 법학논총 Vol.29 No.2

Progress of economic globalization in the 21st century, knowledge-based economy, intellectual property recognized as an important economic infrastructure of the system. The global environment under WTO. WIPO and intellectual property protection around IP5 for the establishment of international norms and international coordination(harmonization) has been in progress for a lively discussion. For the protection of U. S. intellectual property rights, and events focused on Pro-patent policy to pursue. Because the proportion of patents in the U. S. economy is large and important industries such as drugs and biotechnology drugs and new content or software from the leading-edge technologies to protect U. S. economic policy is very beneficial. The goal of patent law reforms to improve the quality of patents, U. S. patent system for the modernization of the global environment at will. In the Senate of the United States to facilitate innovation and competition and patent law and policy to maintain a proper balance in the direction of the reform is expected to review it. Since 1990, the U. S. domestic patent applications increased from 2006 to overtake Japan as the world’s No.1. As the application of the best country in the world, PTO has been facing the challenge of piling up of patent applications and recruiting patent examiner recruitment and training is a problem. As Patent Troll appeared to abuse the patent system, a global company has cooperated mutually to combat it. The ultimate goal of the patent system through the technology innovation is to obtain economic benefits. To continue to promote technological innovation, intellectual property protection and competition policy is desirable to maintain the balance. Our Korean companies should strengthen patent management in order to exercise technical competence in the international stage. For preparation for coming into effect of U. S. Pro-patent policy and patent reform bill, Korean government should research the Patent Law Reform Bill and Pro-patent policy of the U. S. in depth and is expected to respond it

[기술해설]컴퓨터 소프트웨어 발명의 법적 보호

김원준 한국정보과학회 1997 정보과학회지 Vol.15 No.12

3D Human Modeling : From Mesh Reconstruction To Rendering

김원준 한국방송·미디어공학회 2023 한국방송공학회 학술발표대회 논문집 Vol.2023 No.6

Prostaglandin의 약리학적작용

김원준 대한정형외과학회 1983 대한정형외과학회지 Vol.18 No.3

문예 : 수필 : 일하는 국민 잘사는 국민

김원준 대한지방행정공제회 1964 地方行政 Vol.13 No.125

제35권3호 발간사

김원준 전남대학교 법학연구소 2015 법학논총 Vol.35 No.3

특허무효에 기한 기지급 실시료의 반환에 관한 연구 - 대법원 2014. 11. 13. 선고 2012다42666, 42673 판결 -

김원준 전남대학교 법학연구소 2016 법학논총 Vol.36 No.1

The patent holder can sign the license agreement based on the registration of the patent and the license fee can be paid by the patent user. However, in case when the invalidity of the patent is applied retroactively, the validity of the license agreement and the scope of return of the advance payment may constitute a problem. Unless the patented invention that is purposed to be licensed cannot be conducted, the agreement should not be considered to be in the state of impossibility of performance originally from the time of the license agreement, in spite of the retroactive invalidity of the patent, but be considered to be in the state of impossibility of performance from the time when the invalidity of the patent is settled. Therefore, unless the license agreement was originally in the state of impossibility of performance, or if there is any reason of invalidity of the license agreement itself, it should not be considered to obligatory to return the part of the advance payment corresponding to the effectively remaining period of the license agreement as an unjust enrichment from the patent holder to the patent user, even though the patent is settled as invalid after the contract has been made. The relevant judgement justified its ruling regarding whether the patent holder should be under the obligation to return the license fee already paid by the patent user as an unjust enrichment in case when the patent is settled to be invalid after the contract has been made as follows: “Unless the license agreement was originally in the state of impossibility of performance, or if there is any reason of invalidity on the license agreement itself, it should not be considered obligatory to return the part of the advance payment corresponding to the effectively remaining period of the license agreement as an unjust enrichment, even though the patent is settled as invalid after the contract has been made.” It has a significant meaning from the perspective that the relevant judgement justified its ruling regarding the controversy over the obligation to return the advance payment in case when the patent is settled to be invalid after signing the agreement, as the patent holder is under no obligation to return the advance payment to the patent user as an unjust enrichment; simultaneously, it has a significant meaning from the perspective that, for the first time, it clearly describes that the license agreement may not be cancelled in principle due to the mistake other than due to the originality of impossibility of performance. Furthermore, the conclusion of the relevant judgement is considered to be appropriate in that it supports the common view, i.e. the denial of obligation to return of the advance payment and in that it considers the protection of the patent holder. 특허권자는 특허가 등록된 것을 토대로 특허실시계약을 체결하고 이에 기하여 특허실시자로부터 실시료를 지급받을 수 있다. 그러나 특허가 무효로 확정된 경우, 특허실시계약의 효력이 어떻게 되는지, 기지불한 실시료를 부당이득으로 어느 범위까지 반환해야 하는지가 문제된다. 특허발명 실시계약의 목적이 된 특허발명의 실시가 불가능한 경우가 아닌 한 특허무효의 소급효에도 불구하고 그와 같은 특허를 대상으로 하여 체결된 특허발명 실시계약이 그 계약의 체결 당시부터 원시적으로 이행불능 상태에 있었다고 볼 수는 없고, 다만 특허무효가 확정되면 그때부터 특허발명 실시계약은 이행불능 상태에 빠지게 된다고 보아야 한다. 따라서 특허발명 실시계약 체결 이후에 특허가 무효로 확정되었더라도 특허발명 실시계약이 원시적으로 이행불능 상태에 있었다거나 그 밖에 특허발명 실시계약 자체에 별도의 무효사유가 없는 한 특허권자가 특허발명 실시계약에 따라 실시권자로부터 이미 지급받은 특허실시료 중 특허발명 실시계약이 유효하게 존재하는 기간에 상응하는 부분을 실시권자에게 부당이득으로 반환할 의무가 있다고 할 수 없다. 대법원 2014. 11. 13. 선고 2012다42666, 42673 판결(이하 대상판결이라 한다)은 특허발명 실시계약의 체결 이후 계약의 대상이 된 특허가 무효로 확정된 경우 특허권자가 실시권자로부터 이미 지급받은 특허실시료를 부당이득으로 반환할 의무가 있는지 여부에 대하여, 특허발명 실시계약이 원시적으로 이행불능 상태에 있었다거나 그 밖에 특허발명 실시계약 자체에 별도의 무효사유가 없는 한 특허권자가 특허발명 실시계약에 따라 실시권자로부터 이미 지급받은 특허실시료 중 특허발명 실시계약이 유효하게 존재하는 기간에 상응하는 부분을 실시권자에게 부당이득으로 반환할 의무가 없다.고 판시하였다. 대상판결은 특허발명의 실시계약을 체결한 이후 그 대상인 특허가 무효로 확정되는 무효로 확정되는 경우 이에 따른 기지급 실시료의 반환의무에 대한 그 동안의 논란에 대하여, 특허권자가 실시권자로부터 이미 지급받은 특허실시료를 실시권자에게 부당이득으로 반환할 의무가 없다고 판시하고, 동시에 원칙적으로 실시계약이 원시적 이행불능이 아니고 착오를 이유로 취소할 수도 없다는 점을 최초로 명시하였다는 점에서 그 의의가 있다고 하겠다. 또한 대상판결은 통설인 기지불 실시료 반환의무 부정설을 지지하는 판결이고, 특허권자의 보호를 고려한 측면이 있기 때문에 대상판결의 결론은 타당하다고 생각한다.

스텝인덱스 단일모드 광섬유의 최소분산 특성에 관한 연구 ( A Study on the Minimum Dispersion Characteristics on Step Index Single Mode Optical Fibers )

김원준,장대석,이상설 한국통신학회 1987 한국통신학회 학술대회논문집 Vol.6 No.1