國立大 敎授 知的財産權의 歸屬 및 管理의 效率性 提高를 위한 法的 硏究

황호철 忠南大學校 特許法務大學院 2006 국내석사

IT分野의 技術標準과 特許制度와의 關係

최봉묵 忠南大學敎 特許法武大學院 2003 국내석사

It won't be exaggerated that in the 21th century global standard will affect strongly competition power of a nation as well as an enterprise. According to a report of OECD, about 80% of world trades are affected by related standards. Especially 50% of EU products are allowed to trade only when the compulsory standards are satisfied. Therefore all the enterprises in the world are making an effort to standardize. On the other hand, a standard technology is closely connected to intellectual property rights (IPRs) of the technology. Because the standard technology can be used only a person who has the right of it allows it to be used, it is an important matter to review the range of IPRs. Especially in the cases of information technologies (IT) which are complex and correlated each other, the possibility that they include many IPRs (specially patent) is high. So many enterprises are trying to make their IPRs adapted as global standards. Therefore, the International Standards Organizations such as ITU are recommending the rightful enterprises which participate in standardization process to submit information about related IPRs and statements granting a license to an unrestricted number of applicants on a non-discriminatory basis and on reasonable terms and conditions to use the said IPRs. At the same time, they are trying to investigate other IPRs themselves to maximize the purpose of creating the public goods through social spread of technologies But as the validity of the statements submitted by the said rightful enterprises and the analyzing point about the said non-discriminatory basis and on reasonable terms and conditions are not clear, there is still the possibility of raising a trouble. Also, opening the said information of the P R s is not compulsory and exact investigating is actually difficult. Therefore there are still many cases where important IPRs are uncovered in the standardization process. Furthermore, if there is the possibility that the said rightful enterprises are denying to submit the said statements to monopolize related market, which results in disorder of healthful market system, it is issue whether the said case is against the Antimonopoly Law. And though the Antimonopoly Law is applied, there are still some problems of admitting enforcement. In this paper, based on the said problem, beginning with summarized introduction to IPR(especial1y patent) and standard system which are crucial in the IT oriented society, the relationship between the two and viewpoint of International Standards Organizations about the said issue in the process of or after standardization are analyzed. Especially, in case the two are in conflict with each other, the actions which have to be taken are analyzed in various viewpoints such as those of patents law and dispute mediations. But, as the issue has not been interested nationwide, it is to be regretted that the data about the issue was not enough to analyze it from more various viewpoints. I hope that it will be studied more systematically through constant interest and analysis in the future.

特許請求範圍 解釋에 있어서 均等論에 관한 硏究

전동찬 忠南大學校 特許法務大學院 2004 국내석사

In the beginning stage of patent system, the applicants acquired the right only by explaining the contents of the subject matter. But as the technologies get to upgrade so rapidly, the things to infringe another between the inventions get to appear and we are faring the issues about how far the range to be admitted as the patent is. So, the applicants need to thinking out the system which characterizes the claim limits of the subject matter to be admitted as the patent, as well as explaining the contents of it. That is, we call it, "the claim of the patent". But in the case of the simple subject matter, it is relatively easy to identify and understand the limits and the meaning of that limits on the claims forms, while the complicated matter with high-tech methodology in nowadays, we can't express exactly the contents of the subject matter, so for the patent-infringed actions it is so hard to realize that limits only by the literal expressions on the forms in the patented invention. As one of the basic principles in interpreting the meaning of the claim, firstly we may pick up the one that interpretation of the claim should be restricted within the contents of claim on the specification. However, when not understanding and not defining the technical framework and the claim limits of the patent, we can interpret secondly by the supplements data on the specifications such as the drawings and the descriptions. It is one of the requirements of the patent law to register the contents made up of necessary factors to the inventions on the claim sheets. In the case that there is a partial change of the invention but the same identity of that invention is not changed as a whole, if the interpretation strictly made, we get the irrational conclusion that the infringement can not be determined. The Supreme Court have held that the case above must be treated as 'the simple design-around' - that is, the simple design around may be one of the infringement types - without respect to the basic principle discussed above. As a result, the Court sees that simple design-around as one of the technical events on the literal expressions of the claim limits. However, Although there are the differences between patented-inventions and the factors of the infringed matters, admitting the differences as the simple design-around and including the design-around within the infringement types would be the obscure assertion and the arbitrary attitude to the judgement of infringements. Therefore, we can't expect whether the cases treated are the simple design-around or not and so can't get the rational criterion of the judgement. By illustrating the effect of the claim limits on the validity of patented-inventions, for the patentee, there should be the anticipation of the limit to the patent, and for the public, that illustration can play a role to define the ineffective range of the patent. To be so, How to interpret the limits of the patent claims must be opened publicly as a tool to understand that meanings. In fact, much more infringement types are derived from the differences in the partial factors of invention, rather than the infringements from the contravention of the literal meaning. In those cases, the reason we admit that types as infringements is that there are the identities between the patented-inventions and the infringing matters. By nature, the invention is abstractive and the ones are the technical events. Because this abstractive invention should be expressed within the circle of the claim limits, the gap between the inventions as abstractive technical events and the literal expressions on the claim limits would appear inevitably. Therefore, desirable(or correct) interpretation of the claim limits is to find the substance of invention, that is, the technical event underlying the recordings on the claim limits. And in judging the infringement, we have to focus on whether the matter infringes the patented-inventions or not and whether the matter utilizes the technical events derived from the claim limits or not. The doctrine of equivalents initialized by U.S. is the theory developed for the purpose of admitting the infringement of the matter using the technical events and finding the technical events with unbiased attitude in the patented-infringement actions. The reason the doctrine of equivalents is accepted in many judicial precedents, such as the decision of "Byer Geselshaft" of the Supreme Court, the decision of "Ball Spline" of the Japanese Supreme Court and the decision of "Waner Jenkinson" of the U.S. Supreme Court, I think, that the doctrine of equivalent could provide the rational and concrete judgement methodologies in whether the matter is within the identity of the technical events of the patented-inventions or not, in spite of differences between composition factors in both discussed. Requirements of the doctrine of equivalents adopted by Supreme Court, Japanese Supreme Court and U.S. Supreme Courts, have some differences but have many common judgement factors as usual. One of the most important requirements is "the interchangeability". The interchangeability can be described as "whether the matter might be the same inventions or not, when the parts of factors as the necessary factors to the patented-inventions are substituted for others". So, this requirement does not have conspicuous differences from "the judgement method of the identification" as accepted so far in our Supreme Court. And as the next requirement, we can pick up "the known-interchangeability". If the interchanging of the factors in the matter would be the self-evident case that anyone who having ordinary skill in the art to which said subject matter pertains, that interchange should be the infringement of the equivalents.

특허청구범위의 해석과 보호범위에 관한 연구

김재현 忠南大學校 特許法務大學院 2008 국내석사

特許權 存續期間 延長制度에 관한 硏究

유호일 忠南大學校 特許法務大學院 2005 국내석사

Patent term can be extended only if it has not been able to be worked for the certain duration due to Patent term extension (hereinafter 'PTE') is restraints of significant for the patentee as well as the 3rd party who wants to work the patented invention. However law of PTE has been amended many times and relevant rearch regarding PTE administrative plan has not been done sufficiently since the introduction in 1987. The purpose of this study is not only the presentation of PTE impact on the medical and agricultural chemical industries but also the proposal of protecting said industries as the bio-technology develops in these days. It is necessary, as a first step, to get the information about PTE such as purport, the background of introduction, origin, processes of application and examination. Then the PTE legislation backgrounds of U.S.A., Europe and Japan are examined with precedents to know how other countries manage PTE system. In the next step, the investigation is done for the Korean PTE system such as the status of examination handling, the precedent of judgement and the regulations related with the background of introduction, infringement of patent right, the constraint of validity, experimental use, etc. In the following section, Korean PTE is considered in the aspect of impact on the medical and agricultural chemical industries, international harmony and influence on the barrier of international trade, proposing the prospect of related industries and protecting plan. Finally, this study elucidates that it is of necessity to aid the industrial development balancing between public and private interest without the restrictions of protecting patentee's right in explaining article 96 of the Patent Act for the test helping the advancement of technology. It is problematic to introduce the regulation that the clinical examination of late medicine manufacturer is not committed into the infringement of patent right during the patent term, since it is controversial in America. Therefore it has to be carefully considered owing to the possibility of conflict with TRIPs.

特許權의 間接侵害에 관한 硏究

이재완 忠南大學校 特許法務大學院 2002 국내석사

The scope of this thesis is restricted to as follows. First, legislative precedents, doctrines, and cases relating to indirect infringements on a patent right in leading countries are studied. Second, based on Article 127 (Acts Deemed to be Infringement) of the Korean Patent Law, the disputing cases relating to indirect infringements on a patent right are examined. Third, the shortcomings in recognition of the protection scope in indirect infringements on a patent right are considered, and an improved model for determining indirect infringements is suggested. The information in this thesis is obtained by searching the CD-ROMs of legislative precedents and the patent related internet-site such as a patent office or a court of law in each country. The contents of this thesis are as follows; In chapter 2, prior to referring to infringements on a patent right, the interpretation of the scope of a patent claim and the related principles are described, in order to understand the scope of a patent right. In chapter 3, in order to understand the concept of infringements on a patent right, the significance of the patent infringement, the infringement types, and the basic principles and methods for judging the infringement are roughly described. In chapter 4, the significance of indirect infringements on a patent right and its purpose are observed, and compared with foreign legislative precedents. Further, the requirements for establishing indirect-infringements, the timing of patent infringement decision, and the burden of proof are described, and then the related cases in foreign countries and our country are analyzed. In chapter 5, the civil and criminal remedies against indirect infringements on a patent right are described. In chapter 6, problems resulted from the indirect infringements are studied. Finally, in chapter 7, subject matters are collectively analyzed, important contents are summarized, and one model for determining indirect infringements on a patent right is suggested by scrutinizing the determining factors of the indirect infringements step by step.

特許權 間接侵害에 관한 硏究

최미정 忠南大學校 特許法務大學院 2014 국내석사

有形 分析을 통한 特許權 濫用 沮止의 必要性 및 方案 硏究

안정애 忠南大學校 特許法務大學院 2014 국내석사

특허권 공유로 발생하는 법적 쟁점 및 법제적 개선방향에 대한 연구

하재희 충남대학교 특허법무대학원 2015 국내석사

Jointly owned patent rights occur by various causes including succession of partial patent rights, interest assignment and joint research or development. In Korea, the number of patent applications filed by joint owners has been rapidly increasing for the last 10 years due to proactive joint development or research among universities, companies and research institutes. In particular, the importance of joint research or development has been increasing in the aspect of reducing research expense and development period, complementing technical cooperation, and extracting valuable intellectual property like patent. Nevertheless conflict of interest between joint patentees in relation to exercising jointly owned patent rights and difficulties in exercising their patent rights due to imperfect legislative basis or different legislative scope between countries in cooperation have caused big barriers in activating joint research or development in national or international level. According to Korean Patent Law, each joint owner can freely exercise the patented invention without the consent of the other joint owners, but cannot transfer his/her share, establish a pledge, or grant exclusive and non-exclusive license to a third party without the consent of the other joint owners. The Patent Law regulates if an adjudication request with respect to jointly owned patent is made by a joint owner, it shall be made by the names of all the joint patent owners. However it doesn’t prescribe whether each joint owner can file an infringement law suit without the consent of the other joint owners. In this thesis, disputing points concerning the exercise of patent rights by joint owners and the limitations thereof are studied in detail through examining related laws and regulations, views of academic field and precedents, comparing with corresponding regulations of major foreign countries such as U. S. A., Japan, China, Germany, France and Great Britain. It is noteworthy that regulations of U.S.A, China and France permit each joint owner to grant a non-exclusive license to a third party without the consent of the other joint owners. In addition, the law of China, France and Germany provides that profit obtained by granting a license shall be shared between joint owners. The Patent Act of France provides that each joint owner can file a patent infringement law suit asserting a jointly owned patent, independently of the other patent owners while in U.S.A and China, it is provided by the law or precedents that all of the joint owners should be the litigant parties to a patent infringement law suit. Related academic sectors presented diverse opinions and suggested legal alternatives on the disputing points above including profit sharing and litigants of the infringement suit with respect to jointly owned patent rights. This thesis also proposes the amendment directions of the regulations at issue as discussed above, based on the problems shown in the related cases and merits and demerits associated with the suggested legal alternatives. In conclusion, the thesis emphasizes that respective legal amendment should be considered in a balanced perspective after thoroughly addressing and investigating how it would affect the protection of jointly owned patent rights, the utilization of jointly owned inventions, the improvement of technology and the contribution to industry development.

특허권 남용에 대한 규제방안연구 : 권리남용항변에 의한 침해금지청구권의 제한을 중심으로

송이영 忠南大學校 特許法務大學院 2015 국내석사

특허권자가 자신의 권리를 보호하기 위하여 행사하는 침해금지청구권은 일반적으로 특허의 침해가 발생하면 인정되는 권리였다. 그러나 특허권의 행사라 할지라도 특허제도는 산업발전이라는 공공의 이익을 목적으로 하기 때문에 무제한적인 권리의 행사는 남용으로서 인정되지 않는다. 이러한 특허권 남용의 법리는 미국의 연방대법원이 발전시킨 것으로 산업발전과 함께 사회적 변화를 반영하면서 변화하여 왔다. 특허권 남용의 법리는 특허침해의 중지 또는 특허실시료의 지급을 청구하는 소송에서 피고가 제출하는 적극적 항변에서 비롯된 것으로, 특허권자의 특허권 행사가 경쟁법을 위반하거나 또는 특허법에 의해 부여된 범위를 초과하는 경우 이러한 지적재산권의 행사는 권리남용에 해당하여 행사할 수 없다는 형평법상의 원칙으로부터 도출된 것이다. 우리나라의 민법에도 형평법과 같은 권리남용금지의 원칙이 규정되어 있는데, 미국과 어떤 차이가 있는지 비교법적으로 검토해보고자 한다. 그리고 그 중요성이 더욱 더 강조되고 있는 표준특허의 정의, 표준특허에서 발생하는 권리남용의 유형과 더불어 특허괴물의 사례를 살펴보고 우리나라의 필요한 개선방안을 제시해보고자 한다.