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      • 권리범위확인심판에 대한 심결취소소송에서 소의 이익 : 침해소송이 계속 중인 경우를 중심으로

        김관식 세창출판사 2011 창작과 권리 Vol.- No.63

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        The duality of the legal characteristics in the annulment litigations brought to the Patent Court of Korea for the decisions of trials to confirm the scope of patent right by the Patent Tribunal of Korea - declaratory characteristics of the trials as to declare the scope of patent right and constitutive characteristics of the annulment litigations as to annul the decisions by the litigation based on the provisions of the statute - seems to have contributed to the explicitly incompatible decisions by the Patent Court and the Supreme Court of Korea. Judicial hierarchy in proper meaning can not be attributed between the Patent Tribunal of Korea as an administrative branch of the government and the Patent Court of Korea as a judicial branch of the government. Litigations to annul the decisions by the Patent Tribunal, therefore, are intrinsically constitutive litigations and this makes the interest of litigation can not be deniable to the annulment litigations since the litigations are based on the provisions of the Patent Act. Substantial hierarchy, however, may be attributed between the Patent Tribunal and the Patent Court, in that the decisions are reviewed by and only can be vacated and remanded by the Patent Court. The annulment litigations, therefore, can be characterized as declaratory litigations requiring supplementary doctrine as found in the civil declaratory litigations. But the supplementary doctrine can not be applied in accordance with the precedent by the Supreme Court since the litigation is an administrative litigation. This also makes the interest of litigation undeniable to the annulment litigations brought to the Patent Court for the decisions delivered by the Patent Tribunal of Korea.

      • 국제공동연구개발사업에서의 기술협력과 기술보호의 딜레마

        이수미(Lee Soo-mee) 세창출판사 2011 창작과 권리 Vol.- No.63

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        To accelerate globalization of science and technology through adoption and utilization of advanced technology, the Korean government had enacted 「The Framework Act on Science and Technology」, as well as other related laws, which provide legal basis for the Korean government's commitment and support for international joint R&D projects. However, the amended Act of 2010 newly introduced provisions that deal with the ownership and protection of the government-supported (also called "national") R&D results. As international joint R&D projects make up an important part of Korea's national R&Ds, such provisions can be cumbersome, prejudicial and unfair to the foreign participants, such as universities, research centers and companies, as well as researchers, participating in Korea's national R&D projects under the active support of the Korean government. For example, the amended Act lists situations where the national R&D results can be owned by the Korean government. The most problematic situation for international joint R&D is when the research entity is located abroad. Even under the other situations, the ownership of the R&D results can be easily belonged to the Korean government under its sole discretion. For the protection of national R&D results, on top of the long to-do list of mandatory security measures that must be carried out by the participating research entities, the foreign participants are subject to additional restrictions. Despite of the Korean government's efforts to promote and support international joint R&D projects, the newly added provisions will be a great hindrance to such effort. This paper will examine how the Korean laws deal with the ownership and protection of government-supported international R&D results and compare them to the U.S. and European laws dealing with similar matters.

      • 온라인서비스제공자의 저작권 침해책임에 관한 한국에서의 입법 및 판례 분석

        박준석 세창출판사 2011 창작과 권리 Vol.- No.63

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        The legal structure on the secondary liability of Online Service Provider is roughly divided into two parts, liability requirement and liability limitation requirement. The series of Sori-Bada cases had made it a firmly established theory that the clause 3 of article 760 of the Korean Civil Act, which provides the abettor or aider shall be considered as a joint tortfeasor, was the exact statutory ground for the secondary liability requirement of OSP. In granting injunctive relief for just a tort, Korean courts fill the logical gap by underlining specific policy reasons. It seems really interesting that Korean courts have adopted the 'aider' liability theory originally developed in online copyright infringement cases as the general principle about a service provider's secondary liability for all kinds of infringement on the internet. The notice and take-down scheme in the provisions for online service provider's liability limitation in the Korean Copyright Act were heavily affected by DMCA in the US. But the usual effect related to immunity is no more than discretional mitigation or exemption in Korea. The Korean Copyright Act amended in 2007 established peculiar articles related with OSPs' liability. First, the article 104 imposes the duty along with penalty upon a so-called specific type of OSPs whose main purpose is distribution of works by transmission, to accommodate technological measures for interrupting illegal distribution of copyrighted materials. Second, the article 133-2 gives the administrative authority the power to shut down an account of a continuous infringer and even the whole bulletin board which OSP provided the infringer with. These two articles will arguably render our internet industry sterile rather than stop online copyright infringement.

      • 디지털저작권 보호와 온라인서비스제공자의 책임

        윤종민(Yoon chong-min) 세창출판사 2011 창작과 권리 Vol.- No.63

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        The liability of online service provider(OSP) on the illegal reproduction and transmission was established to some degree through the argument for a long time. But, recently as the opinions of improvement for the provisions of liability of OSP having been submitted, the discussions of validity against that are still being caused. This paper aims to analyze the revisions and legislations to the copyright law comprehensively. For the purpose of this paper, it is studied that the problems on infringement of digital copyright and protection of author's right, the liability framework and content of OSP, a legislative bill submitted to the National Assembly, etc. As a result of research, we have the conclusion that the liability of OSP depends on technical level and social-cultural atmosphere, but will be extended more and more when considering the international trend.

      • 자유/오픈소스소프트웨어의 지적재산권과 경쟁

        이철남(Lee Chul-nam) 세창출판사 2011 창작과 권리 Vol.- No.63

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        Software market has been formed and developed based on Intellectual Property Rights. It is difficult to lead to cooperation among parties concerned in the software market founded on monopoly norms, which often causes businessmen to abuse their monopoly status. These side effects are occasionally corrected by the anti-trust law. However, free/open source software such as Android has led parties concerned to cooperation with the flexible application of intellectual property right. Open source licenses are the medium that draws the cooperation in the pertinent market established on monopoly norms of Intellectual Property Rights. This research aims at connecting open source license to intellectual property rights and anti-trust law, which are traditional norms of software market. Open source community norms based on a copyright and open source licenses are evaluated not to have particular problems in the aspect of the antitrust law. However, software patent have raised new issues that open source community should deal with since the mid-1990s.

      • 특허법상 미완성발명과 기재불비의 적용관계에 관한 검토 : 특허법원 2010. 10. 29. 선고 2010허3622 판결을 중심으로

        정태호 세창출판사 2011 창작과 권리 Vol.- No.62

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        Article 29(Requirements for Patent Registration) in Patent Act states that inventions that have industrial applicability are patentable and Article 42(Patent Application) in Patent Act states that the patent application can't be registered unless the detailed description and claims of the invention describe the invention clearly and in detail as prescribed by Ordinance of the Ministry of Knowledge Economy so that a person with ordinary skill in the art to which the invention pertains may easily work the invention. Recently, Patent Court decided that a patent registration was invalid based on Lack of Description against Article 42, not on Incomplete Invention against Article 29(Patent Court Decision No.2010Heo3622; October 29. 2010). Substantially, there is no definite guideline that make a clear distinction between Lack of Description and Incomplete Invention and there is no definite standard that can explain which ground of both shall be applied in Korean patent examination guideline and court decision. In conclusion, it is necessary to set up a definite guideline on the Relation between Lack of Description and Incomplete Invention in Patent Act.

      • [특별기고] 대한민국 특허제도의 문제점 (I)

        최덕규(Choi Duk-kyu) 세창출판사 2011 창작과 권리 Vol.- No.63

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        In Korea and Japan, patent fees and annuities depend on the number of claims, which is unique unlike the rest of the world. The current patent fee system in Korea and Japan may not be justified to achieve the goal of the patent system. The patent fee system may block the applicants to draft claims in proper numbers because they shall consider the number of claims so as to reduce patent fees and annuities. And to make it worse, both countries adopt a cancellation system of claims in which the patentees may cancel some of the patented claims voluntarily during the patent period when they pay the annuities. Such cancellation system will face a predicament which the patentees shall not allege any rights against a third party's utilization of the cancelled inventions because the cancelled inventions can be used by a third party without constituting a patent infringement action under the File Wrapper Estoppel. The current patent fee system of Korea and Japan shall be dropped to maximize the goal of the patent system so that the inventions might be protected properly and perfectly under the multiple claim system. The current patent fee system shall be prepared per patent rather than per claim. If so, the cancellation systems of claims shall be automatically abolished.

      • 수리부품디자인의 보호에 관한 국제적 동향과 과제

        전성태(Seong-Tae Jeon) 세창출판사 2011 창작과 권리 Vol.- No.64

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        Companies supplying parts cannot manufacture a car door that an automobile company has the design rights if the car door is damaged in the accident. In the aftermarket, the companies supplying parts have to buy the car door to the automobile company that has the design rights. Therefore, it is hard for the companies supplying parts to participate in the market. Consumers and insurance industry also suffer when the market is monopolized by a few companies. The regimes of design law for the automobile industry depends on the diverse interests between countries. More to the point, there is no enforceable regulations under the provisions of the spare parts in the international treaties. Therefore, each country needs to consider the reduction of the period of protection for repair parts to minimize harmful effect of spare parts. It is also required the introduction of license agreement to the companies supplying parts in the conditions of payment after a period of years. This study is to review the background of the provision of the repairs and the trends of repair parts design protection in each country. Also, the study presents a few opinions to win antitrust clearance and to protect the design of repair parts. The introduction of license agreement to the companies supplying parts in the conditions of payment is required after a period of years. It will require the reduction of the period of protection for repair parts to minimize harmful effect of spare parts. And the introduction of license agreement to the companies supplying parts in the conditions of payment is needed after a period of years.

      • 상품의 입체적 형상만으로 된 상표의 등록 요건

        신혜은(Shin, Hye Eun) 세창출판사 2011 창작과 권리 Vol.- No.64

        '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.

        This article relates to requirements for trademark registration as to the mark consists solely of three-dimensional shape of the goods. Since revision of the Korean Trademark Act on August 22, 1997, threedimensional shape that is used on goods related to the business of a person who conducts business activities, such as producing, processing, certifying or selling such goods, to distinguish them from the goods of others is defined as a trademark. Therefore, the mark consisting solely of three-dimensional shape of the goods can be registered as a trademark as long as it satisfies the requirements for trademark registration. However, in practice, it is nearly impossible to receive a trademark registration as to the mark consists solely of threedimensional shape of the good, even before the application for registration consumers are easily able to recognize the person whose goods are indicated by the three-dimensional shape. That kind of situation is against the purpose of Trademark Act which is to ensure the maintenance of the business reputation of persons using trademarks by protecting trademarks so as to contribute to the development of industry and to protect the interests of consumers. This article suggest resonable interpretation of trademark registration requirements for three-dimensional trademark corresponding to the purpose of Trademark Act.

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