국가연구개발사업 성과물의 지식재산권 측면에서의 보호관리 개선 방안 연구

오재민 충남대학교 특허법무대학원 2013 국내석사

特許權保護를 위한 特許請求範圍 解釋에 관한 硏究

홍순칠 忠南大學校 特許法武大學院 2003 국내석사

The patent system is the legal grant of monopolized-exclusive right of execution during a given period, for those who opened their inventions therefor, to encourage technical developments and to promote industrial growth through the usage of patented technologies. For acquiring a patent right, an applicant should submit a document of application in the legally defined format, which should include detailed description, claims and drawings needed. Korean Patent Act Article 97 prescribes that the matter for which protection is sought shall be defined by 'claims'. So the protection range of an invention must be clearly written in claims to be strongly protected by the law. But there still remains the difference in interpreting claims under the legal process of confliction and according to those concerned such as applicants, examiners, judical officers, trespassers, executers. These are caused by the difference in point of views and the possibility of prior arts or evidence of nullity which may be found out additionally thereafter. Some clear and theoretical guideline for interpreting claims has been required to make it general and optimized. Historically 'Central Definition' and 'Peripheral Definition' were introduced first. 'All element rule' and 'principle of consideration of detailed explanation' were developed as general theories then. However, infringement could be claimed even if the accused product or process does not fall within the literal scope of the patent claims. Therefore, the Doctrine of Equivalents has been developed as a general topic in US and it attempts to balance protecting patentees ' exclusive rights and providing the public with notice on the limits of the patented scope. To bar extensive applications of the Doctrine of Equivalents, the Prosecution History Estoppel is to be accepted generally and more broadly. Recently the Korean Supreme Court has indicated clearly Doctrine of Equivalents at a patent suit case. So, the Doctrine of Equivalents is being discussed vigorously in Korean academic world. In this regard, judicial base for applying the Doctrine of Equivalents needs to be established in Korean Patent Law and the criteria on the interpretation of claims, which is suitable for Korean Patent Law and the Korean technological environment, should be formulated to prevent possible legal conflicts, to protect national industrial interests and to be adapted to the globalization of the patent system.

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.

국내외 특허법상 손해배상제도 비교연구 : 배액배상제도 도입을 중심으로

이종경 忠南大學校 特許法務大學院 2015 국내석사

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.

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.

標準特許權 行使의 競爭法的 制限

이상돈 忠南大學校 特許法務大學院 2013 국내석사

If patent rights are beyond the scope of the public interest or public policy, use of patent rights can be restricted. So abuse of patent right also can be limited if use of patent rights limit the competition of a market economy. These days, the proportion of standardization in the modern market is more important than before so many companies who recognize the importance of standard is trying to adopt their own technology into the standardization. Also, they are trying to apply patent matched the standard technology that is progressing in a standardization organizations. In these situations, the restriction of essential patent rights is going to different ways that of ordinary misuse of patent rights. Courts or competition authorities restrict more strictly to essential patents because they have more impact on the market. However, the impact of patents on the market is affected by various factors such as advancement of the technology; the size of the market related the patent. So, even if the patent rights are just included in standard, restriction of essential patent rights is needed to be cautious. This study research the variety of issues that might arise in the standard process and rational ways to restrict the essential patent rights.

韓美FTA와 醫藥品 許可-特許 連繫制度

허성호 忠南大學校 特許法務大學院 2013 국내석사

With the effectuation of the Korea-US FTA(Korea-US Free Trade Agreement) most parts of the Korean Industry will be influenced. Especially Korean pharmaceutical industry where the generics occupied major portion in the market is considered to have a serious damage. To minimize the damage to Korean pharmaceutical industry caused by Korea-US FTA, the proper fallback should be prepared on a nationwide scale, by industry as well as by Korean government. In this study I examined articles of Korea-US FTA concerning about medicines, and examined what should be prepared to satisfy these articles by Korean government and Korean pharmaceutical industry. For this purpose I looked into the Hatch-Waxman Act containing the patent term restoration and ANDA(abbreviated New Drug Application), and Indian patent law containing the article about supporting the generic industry. Finally I suggested some ideas which would be necessary for lawmaking to minimize the damage to Korean pharmaceutical industry caused by Korea-US FTA and to support Korean pharmaceutical industry for the development.

特許製品 竝行輸入에 관한 硏究

김주대 忠南大學校 特許法務大學院 2002 국내석사

The purpose of this study is to know whether parallel import of patented goods may be allowed in Korea by through genral rules, foreign laws and foreign precedents for parallel imports. So far, Parallel imports of genuine goods in the field of intellectual property laws have been generally prohibited by principles of independence of right and territorialism in the Paris Convention, but they are partially allowed by international exhaustions of patent rights and the free movement of goods and services. Recently it is claimed that neither principles of independence of right nor territorialism can be relied upon to judge whether or not parallel imports may infringe patent right and that this is a problem which should be left solely to interpretation of the domestic patent law. In Korea it is interpreted that parallel imports of patented goods is prohibited by the patent law because patent law defines importing in "working" means and has no exception for that. But, when considering the flow of products by international transactions in view of the circumstances of modern society in which international economic transactions are spreading widely and progressing to higher levels, the free flow of products including importation must be respected to the maximum possible extent even in cases in which dealers import products sold abroad and place them on the market. Therefore, the parallel imports of patented goods should be allowed by the principle of free trade of goods and the function of patent law. But, although parallel imports involving patent should be granted, there are a few cases to have to prohibit those in case patented goods are put into circulation without the consent of the rightholder. In that cases, purposes of patent law can not be acheived to encourage, protect and utilize inventions, thereby improving and developing technology, and to contribute to the development of industry.

고품질 특허창출을 위한 제도적 개선방안 연구

양찬호 충남대학교 특허법무대학원 2016 국내석사

The study schemes to induce a high-quality patent application in the previous patent creation step, to improve the quality of examine in the examination step, to be managed patent quality after registration. With regard to quality of patents, it is to investigate the prior art is very important for the applicant as well as the examiner. The invention fully investigate the prior art to be filed before the application can be found by looking to determine whether a patent can be with novelty or inventive step. Investigating the prior art improves the quality of the patent by creating or improving a prior art patent, bypassing patent. The irradiation in a prior art examination step is a process that requires a lot of time and effort. Influence on the quality of examination according to the degree of tilt of search effort in the art may be proportional. Therefore, for the quality of the patent creation, applicant as well as examiner prior art search also is an important requirement. Institutional measures that the applicant could lead to search for prior art before the application is a way to describe the way that the prior art to separate formatting to the prior art described in the background art. In order to assess the quality of the prior art to be provided with information related to a combination of keywords and sources of the prior art. Next, a scheme to obtain the assistance of experts from the prior art document examination stage. To open the examination stage is to improve the outside so that you can communicate with the outside of the closed examining practices. Professionals engaged in production are familiar with the technical trends in the art. When offered the preceding article, with the help of experts, examination quality would be improved. Finally, a way to enhance the quality of the patent registration after the determination. After registration for the registration decision before pre-grant amendment, it is necessary to RCE(Request for Continued Examination) of the United States. After registration decisions before registration to be amended by the applicant sees a institution to relieve the defect. After the registration of the judgment correction system, or the applicant may wish to review the system can be corrected, such as the United States supplemental examination or re-examination system institutions. However, the improved system is needed to reduce the burden to the applicant and can be processed quickly. The need to review the appeals system as a system that allows third party to point out the flaws of registered patents after registration. To be of high quality patents create prior art investigation by the applicant derived to be settled from the application stage, improve the quality of the audit with the help of experts, the registration decision, yet, even after processing procedures quickly, to the right or the claimant 's burden to mitigate I think the institutional plan to be presented to make it possible to eliminate the defect.