언론> 연극 ‘렛미인’ 주역에 이예은·권슬아·정휘·박재석 | 군포철쭉축제

발명자․공동발명자 판단 법리에 대한 연구 219 1) 원고 주장 원고는 그 당시 발명에 관여하지 않은 상사 등을 공동발명자로 기재하는 관습이 존재하였다고 주장하며, 나아가 대상 발명은 원고가 단독으로 발명한 것이거나, 적어 도 원고의 지분율이 70%라고 주장하였다.

2018년 12월 20일 ○ 주관연구기관명 : 충남대학교 산학협력단 ○ 연 구 기 간 : 2018. 8. 31. ~ 12. 30. ○ 주관연구책임자 : 충남대학교 김 동 준 ○ 참여연구원 ․연 구 원 : 성균관대학교 정 차 호 ․연구보조원 : 성균관대학교 문 려 화 ․연구보조원 : 충남대학교 홍 승 희 i 구성요소 부가 특허출원에 의한 영업비밀 기술탈취 방지를 위한 특허법의 공동발명 개선안 연구 목 차 제1장 서론 ····························································································································17 제2장 기술탈취 관련 법규의 현황 및 문제점 ·························································23 I. 특허법 외의 관련 법규 ····································································································25 1. 부정경쟁방지법 ·················································································································25 2. 하도급법 ·····························································································································27 3. 상생협력법 ·························································································································32 4. 중소기업기술보호법 ·········································································································33 5. 현행 법규의 한계(문제의 제기) ·····················································································34 II. 특허법 ·································································································································43 1. 관련 규정 ···························································································································43 2. 현행 규정의 한계(문제의 제기) ·····················································································45 제3장 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법에 관한 우리나라, 일본, 미국, 중국 및 독일의 법리 연구 ·················································47 I. 우리나라의 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법 ··········49 1. 공동발명자 판단 법리 ···································································································49 2. 공동발명자 간의 지분율 산정 ·······················································································64 II. 일본의 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법 ·················68 1. 발명자의 인정기준 ·········································································································68 2. 공동발명자의 인정기준 ···································································································75 3. 공동발명자 간의 지분율 ·································································································81 III. 미국의 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법 ··············104 1. 발명자 판단 법리 ···········································································································104 2. 공동발명자 판단 법리 ···································································································109 3. 공동발명자 인정을 위한 주관적 의사(교환)의 필요성 여부 ·································113 4. 미국의 공동발명자 판단 관련 여러 기준 ·································································118 5. 공동발명자 여부와 모인 ·······························································································119 ii IV. 중국의 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법 ·············121 1. 중국의 공동발명자 법리 ·······························································································121 2. 공동발명자의 법리 ·········································································································125 3. 중국의 첨부 법리 ···········································································································127 V. 대만의 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법 ··············133 1. 발명자 인정기준 ·············································································································133 2. 공동발명자의 인정기준 법리 ·······················································································134 VI. 독일의 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법 ·············140 1. 공동발명자 판단 법리 ···································································································140 제4장 발명자‧공동발명자 판단 법리에 대한 연구 ···············································145 I. 발명자 여부를 판단하기 위한 관련 법리의 연구 ····················································147 1. 서론 ···································································································································147 2. 착상과 구체화의 개념 명확화 ·····················································································147 3. 발명의 완성 시점: 실시 가능 시점 v. 효과 결정 시점 ·········································157 4. 청구항을 기준으로 하는 발명자 판단 ·······································································159 5. 결론 ···································································································································168 II. 공동발명자 사이에 (객관적 기여 외에) 주관적 의사교환이 필요한지 여부: 모인 발명을 중심으로 ··················································································································168 1. 서론 ···································································································································169 2. 기존의 상반된 견해 ·······································································································170 3. 모인 후 변경된 발명에서의 공동발명자 인정 사례 연구 ·····································172 4. 시나리오 연구 ·················································································································184 5. 공동발명자 판단을 위한 주관적 요건 법리의 구축 ···············································187 6. 민법의 첨부(添附) 법리: 주관적 요건 불필요 ·························································190 7. 특허법 개정방안 ·············································································································192 8. 결론 ···································································································································196 III. 공동발명자 간 지분율(share rates) 산정방법 ·························································198 1. 서론 ···································································································································198 2. 1975년 小林健男론 ·········································································································198 3. 1999년의 Tigran Guledjian 방법: 청구항 수를 기준으로 하는 방법 ··················202 4. 2007년 정차호 산정방법 ·······························································································203 5. 2012년 일본의 影山光太郎(카게야마 코우타로우) 이론 ·········································205 6. 일본의 공동발명자 지분율을 산정한 판례 연구 ·····················································214 7. 우리나라의 공동발명자 지분율을 산정한 판례 연구 ·············································231 8. 공동발명자 지분율 산정방법 제안 ·············································································242 9. 결론 ···································································································································246 iii 제5장 특허법상 모인(冒認) 법리 ················································································251 I. 우리나라 ····························································································································253 1. 모인의 의의 ·····················································································································253 2. 모인출원‧특허의 거절‧무효 ····························································································254 3. 모인출원‧특허에 대한 정당한 권리자의 구제 ··························································280 4. 모인자 기여의 취급 ·······································································································285 II. 주요국의 법리 ·················································································································289 1. 일본 ···································································································································289 2. 미국 ···································································································································309 3. 독일 ···································································································································326 4. 영국 ···································································································································347 III. 정리 ··································································································································363 1. 모인의 의의 ·····················································································································363 2. 모인 출원‧특허의 거절‧무효 ··························································································364 3. 모인 출원‧특허에 대한 정당한 권리자의 구제 ························································364 4. 모인자 기여의 취급 ·······································································································365 제6장 모인 및 정당한 권리자 구제 관련 제도개선방안 ···································367 I. 모인 시 거절‧무효의 범위 ·····························································································369 1. 우리나라의 법리 ·············································································································369 2. 주요국의 법리 ·················································································································377 3. 개선방안 ···························································································································378 II. 모인자 기여 시 공동발명 인정 여부 ·········································································383 1. 우리나라의 법리 ·············································································································383 2. 주요국의 법리 ·················································································································384 3. 개선방안 ···························································································································387 4. 공유 관련 문제 ···············································································································395 III. 정당한 권리자의 구제 관련 검토 ··············································································399 1. 우리나라의 법리 ·············································································································399 2. 주요국의 법리 ·················································································································400 3. 개선방안 ···························································································································400 4. 정리 ···································································································································402 IV. 소결론: 해석론에 의한 대응 ······················································································403 V. 입법적 해결방안(보론) ··································································································407 1. 방안 1: 특허를 받을 수 있는 권리 규정 개정(공동발명자 정의 無) ··················407 2. 방안 2: 무권리자 출원‧특허에 대한 특허요건 특례 신설 ·····································411 iv 3. 방안 3: 특허를 받을 수 있는 권리의 공유 규정 개정 ··········································414 4. 모인 상황에서의 출원 분할 방안 ···············································································419 제7장 결론 ··························································································································423 v <표 차례> <표 1> 하도급거래 공정화법 개정 경위 ········································································29 <표 2> 기술탈취 관련 법규(보호대상 및 위반행위 비교) ··········································34 <표 3> 기술탈취 관련 법규(위반행위에 대한 제재 비교) ··········································36 <표 4> 중소기업 기술탈취 근절대책(18. 2. 중기부/산자부/공정위/특허청) ··············40 <표 5> 기술적 사상에 대한 기존이론과의 비교(影山) ··················································89 <표 6> 발명의 분류(影山) ····································································································90 <표 7> 원리·모델의 구분, 예측난이성, 중요성(影山) ·················································97 <표 8> 지분율 산정기준(影山) ··························································································100 <표 9> 발명자 판단 기준(Chisum) ···················································································119 <표 10> 갑이 a를 착상하고 을이 그 착상을 모인한 후 b 착상을 추가한 경우의 처 리 ············································································································································120 <표 11> 착상과 구체화(조영선 교수 설명) ····································································155 <표 12> 착상과 구체화 법리 제안 ··················································································156 <표 13> 공동발명 관련 가상사례 1 ················································································185 <표 14> 공동발명 관련 가상사례 2 ················································································186 <표 15> 공동발명 정의규정 제안(김승군·김선정) ······················································193 <표 16> 공동발명 정의규정 제안(정차호) ······································································193 <표 17> 원리·모델의 구분, 예측난이성, 중요성(影山) ·············································210 <표 18> 원리 및/또는 모델의 관여자: 2가지 경우(影山) ···········································211 <표 19> 발명자의 지분율 산정방법(影山) ······································································212 <표 20> 知財高裁 平成19年(ネ)第10056号 判決의 사안 ··············································227 <표 21> 지분율 산정 사례(서울중앙지방법원 2013가합517131 판결) ······················233 <표 22> 지분율 산정 가상사례(정차호 산정방법) ························································245 <표 23> 특허법원 2015허1430 판결(모인 여부 판단) ················································266 <표 24> 특허법원 2014허7707 판결(모인 여부 판단) ················································269 <표 25> 모인 여부 판단 특허법원 판결 정리 ······························································275 <표 26> 특허법 제35조에 따른 정당한 권리자 출원 사안(10-2010-21941) ············281 <표 27> 출원일소급제도/특허권이전청구제도에 있어서 동일성에 대한 학설 ·······288 <표 28> 동일성에 대한 학설 비교 ··················································································289 <표 29> 모인대상발명과 특허발명의 대비(東京地裁 平成13年(ワ)第13678号) ·······291 <표 30> 피고발명과 특허발명의 관계(知財高裁 平成17年(行ケ)第10193号) ···········292 <표 31> 미국 CAFC Oddzon 판결 사안 ·········································································313 <표 32> 모인의 의의(주요국 비교) ················································································363 <표 33> 모인 출원‧특허의 거절‧무효(주요국 비교) ····················································364 <표 34> 모인 출원‧특허에 대한 정당한 권리자의 구제(주요국 비교) ···················364 <표 35> 모인자 기여의 취급(주요국 비교) ··································································365 vi <표 36> 모인 여부 판단기준 관련 특허법원 판결의 동향 ········································369 <표 37> 대법원 2009후2463 판결의 의미에 대한 학설 ··············································371 <표 38> 발명자의 의의(AIPPI 보고서) ············································································388 <표 39> 주요국의 공동발명 성립요건 비교 ··································································391 <표 40> 특허권 이전청구 규정 비교(우리나라와 일본) ··············································393 <표 41> 공유특허의 지분활용에 대한 주요국 제도 현황 ··········································397 <표 42> 공유특허의 분할청구에 대한 주요국 제도 현황 ··········································397 <표 43> 종합검토(피모인자와 모인자의 공유 인정 시) ··············································403 <표 44> 종합검토(피모인자와 모인장의 공유 불인정 시) ··········································406 <표 45> 특허법 개정방안(방안 1) ····················································································407 <표 46> 특허법 개정방안(방안 2) ····················································································412 <표 47> 특허법 개정방안(방안 3-1) ················································································415 <표 48> 특허법 개정방안(방안 3-2) ················································································416 <표 49> 특허법 개정방안(출원 단계 중 분리 이전 방안) ··········································419 <그림 차례> [그림 1] 발명자/공동발명자의 인정 및 지분율 산정의 기본적인 절차(影山) ········103 [그림 2] 발명자/공동발명자의 인정 및 지분율 산정의 기본적인 절차(影山) ········213 요약서(Summary) 1 <<구성요소 부가 특허출원에 의한 영업비밀 기술탈취 방지를 위한 특허법의 공동발명 개선안 연구>> 요약서(Summary) 제1장 서론 본 “구성요소 부가 특허출원에 의한 영업비밀 기술탈취 방지를 위한 특허법의 공 동발명 개선안 연구”의 보고서는 기술탈취 문제에 효과적으로 대응하기 위해 특허제 도개선이 필요한지 여부와 관련하여, 제2장에서는 기술탈취 관련 법규의 현황 및 문 제점에 대해, 제3장 및 제4장에서는 우리나라와 주요국의 발명자 공동 발명자 판단 법리 및 제도개선방안에 대해, 제5장 및 제6장에서는 우리나라와 주요국의 특허법상 모인(冒認) 법리 및 제도개선방안에 대해 연구하였는데, 이하 연구결과를 요약한다.

<표 Ⅶ-1> 나노디그리 참고자료 4차 산업혁명 시대에 필요한 지식재산 분야별 전문인력 양성 방안 - 182 - 교육기관은 시설·설비 및 교·강사, 교육콘텐츠 및 교육기간 등의 제약 없이, 활용 가능한 외부자원을 포함 해 프로그램을 구성함에 따라 교육기관별로 특성화된 교육프로그램을 제공할 수 있다. 아울러 학습자의 최종 직무능력 습득 인증을 교육기관이 아닌 기업에서 담당함에 따라 양질의 교육프로그램 을 제공하기 위한 교육기관 간 경쟁을 유도할 수 있다. 1개 직무에 대해 여러 교육기관에서 다양한 프로그램을 개설하므로, 학습자는 교육기관별 인증률, 자신의 시·공간적 여건, 직무수준과 학습비를 고려해 알맞은 과정을 선택할 수 있다. 또한, 해당 분야에서의 대표기업이 직무능력을 인정하기 때문에, 대표기업 뿐만 아니라, 관련 대기업 또는 중 소기업 등으로의 취업, 이직 등에 인증서를 폭넓게 활용할 수 있다. 교육부는 한국형 나노디그리의 성공을 위해서는 기업의 적극적인 참여가 필수적인 만큼, 관련 분야에서 대표 기업을 발굴·확보하는 데 총력을 기울이고, 4차 산업분야 한국형 온라인 공개 강좌(K-MOOC) 개발, 유다시티 및 민간(기업) 온라인 교육프로그램 등 다양한 콘텐츠를 확보해 한국형 나노디그리 프로그램을 운영하는 교육기 관에서 활용할 수 있도록 지원할 예정이다. 또한 학습자가 대표기업이 제시한 미래사회 핵심직무 및 평가방식, 교육기관별 상세 교육과정 및 기관별 인 증률, 학습비 등을 한눈에 확인할 수 있는 정보제공시스템을 구축할 계획이다. 아울러 미국의 사례와 같이 나노디그리 운영이 민간의 자율성과 책무성에 기반해 있는 만큼 교육부는 사업초 기 기업과 교육기관 간의 테스트베드(testbed)를 조성하는 데 주력하고, 중장기적으로 기업-교육기관이 신뢰에 기초해 자율적 운영이 가능하도록 지원할 예정이다. 교육부는 오는 16일 서울 여의도 금융투자교육원에서 기업과 교육기관을 대상으로 ‘한국형 나노디그리 운영 의견수렴회’를 개최하고, 내년 1월까지 유망분야와 참여할 대표기업을 선정할 계획이다. 2018년 상반기까지 핵심직무별 참여 교육기관을 확정해 교육프로그램을 개발한 뒤, 2018년 7월부터 단계적으 로 학습자에게 (가칭)한국형 나노디그리 교육프로그램을 제공해 나갈 계획이다. 명칭은 국민들이 보다 쉽게 알 고, 폭넓게 참여할 수 있도록 공모를 통해 확정하기로 했다. 김상곤 부총리는 “국정과제의 하나인 (가칭)한국형 나노디그리 시범운영으로 4차 산업혁명에 적극적으로 대 응할 수 있는 평생교육 여건을 조성하고, 성인 평생학습을 보다 활성화할 수 있을 것으로 기대한다”고 밝혔다. 출처 : Ⅶ. 4차 산업혁명 시대에 필요한 지식재산 전문인력 양성 방안 - 183 - 1-3. 유관부처, 기관 등 IP 교육과정이 필요한 영역에서의 지식재산교육 네트워크 구축 □ 개요 ◯ 지식재산기본법(2011.5.19 제정, 2017.12.19 일부개정), 발명교육의 활성화 및 지원법률 (2017.3.14)에 의거 내실 있는 지식재산인력기본계획 작성 등을 통한 유관부처 및 기관과 의 연계체계 구축이 필요 - 발명교육센터(201개) 등을 활용한 발명인재 양성을 위한 교육부, 중소벤처기업부와의 연계 사업이 필요 - 지식재산교육 선도대학, MIP 대학원 등 인력사업 관련하여 산업계와 연계 사업 지원 강화가 필요 ◯ 발명교육센터, 발명특성화고, 지식재산교육 선도대학, MIP 대학원 등 지식재산인재 양성 사업에 ‘외부기관와의 연계활동’계획을 반영하고 이를 평가하는 체계 구축 □ 추진방향 ◯ 부처, 공공연구기관 관련 연계 활동 반영한 종합계획의 내실화와 추진 - 지속가능한 협의체 구축 및 내실화 추진, IP 필요성 등 홍보물 제작 및 배포 ◯ 특허청, 한국발명진흥회 인력양성 사업에 외부 네트워크 구축 계획/평가에 반영 (사업을 담당하는 기관, 담당자의 자생적 연계 동기 부여) □ 기대효과 ◯ 지식재산에 관한 분산적 교육의 중요성 인식을 통한 ‘지식재산교육’당연성 확산 ◯ 지식재산 관심 증대에 따라, 지식재산서비스업 등 관련 일자리 유입 인재 확대 지식재산기본법 제4조(국가 등의 책무) ① 국가는 이 법의 목적과 기본이념에 따라 지식재산의 창출ㆍ보호 및 활용을 촉진하 고 그 기반을 조성하기 위한 종합적인 시책을 마련하여 추진하여야 한다. ④ 국가, 지방자치단체, 공공연구기관 및 사업자등은 지식재산의 창출ㆍ보호 및 활용 촉진과 그 기반 조성을 위한 정부의 시책이 효과적으로 추진될 수 있도록 서로 협력하여야 한다. 발명교육기본법 제4조(발명교육 기본계획 및 시행계획의 수립ㆍ시행) ① 특허청장은 발명교육의 효율적인 추진을 위하여 대통 령령으로 정하는 관계 중앙행정기관의 장과의 협의를 거쳐 발명교육 기본계획(이하 "기본계획"이라 한다)을 5년 마다 수립하여야 한다. 제12조(산업재산권 전문인력 양성 지원) ② 국가 및 지방자치단체는 대학 등 「고등교육법」 제2조에 따른 학교를 설립ㆍ경영하는 자에게 산업재산권과 관련된 연구소의 설치ㆍ운영 등을 권장할 수 있다.

④ 검토 결과 모인자의 기여가 인정되어 모인출원에 관한 권리가 모인자와 진정한 권리자의 공 유로 되는 경우, 권리의 유효한 활용이 방해될 우려가 있으므로, 공유의 권리로 되지 않도록 반드시 어느 일방의 자에게 권리를 귀속시키기 위한 규정을 마련하는 것도 생 각될 수 있는 반면, 당사자가 권리의 공유를 희망하는 경우도 생각되므로, 상기와 같 은 규정을 마련하는 것으로 유연한 대응이 불가하게 될 우려도 있으므로, 모인자의 기 여에 관한 취급에 대하여는 구체적 사안, 당사자의 희망 등에 따라 유연하게 대응할 수 있는 것이 바람직하며 특정의 선택지에 한정되는 것이 없도록 배려해야 한다고 보 고 있다.795) 또한, 이전청구를 제도상 인정하는 것을 전제로 한 경우, 현행 민법 등의 틀에서 일정한 대처가 가능하다고 생각되며, 모인자의 기여에 관하여 입법적인 조치 (예를 들면, 공유의 권리로 하지 않고 반드시 어느 일방의 자에게 권리를 귀속시키기 793) 모인출원의 특허청구범위에 기재된 발명의 구성 중, 특징적 부분에 모인자가 기여하지 않는 경우나, 모인자 의 기여가 단순한 절차적 기여인 경우에는, 모인자에 대하여 권리의 공유가 인정되지 않는 것은 아닐까? 794) 高林龍「判批」判時1776号（2002）205頁 参照. 795) 社団法人 日本国際知的財産保護協会, 前揭 報告書(特許を受ける権利を有する者の適切な権利の保護の在り方 に関する調査研究報告書), 25頁. 구성요소 부가 특허출원에 의한 영업비밀 기술탈취 방지를 위한 특허법의 공동발명 개선안 연구 300 위한 규정, 모인자에 대하여 금전적인 수당을 하는 것을 가능하게 하기 위한 규정을 마련하는 것 등)를 할 필요성은 낮은 것으로 보고 있다.796) 3) 공동발명의 인정에 관한 판례 가) 大阪地判 平成12年7月25日 平10(ワ)10432号 (아래 항소심 판결에 의해 파기) [太 和チエン機工外対C(個人) 事件] [ローラチエン用トッププレート] [カバー付き チェーン] [기계] (비직무발명대가청구) (공동발명으로 인정) (小松一雄 재판 장)797) 이 판결은 발명이 이루어진 과정을 인정하고, 어떤 개인사업자 및 다른 사업자의 대표자의 공동발명으로 판단한 것이다. 판결은, 본건 양 발명은 종래품에 비추어 ①부 터 ⑤까지의 특징을 갖는다고 하고, 그 중 ①, ② 및 ⑤는 F가, ③ 및 ④는 E가 생각한 것이므로 양자의 공동발명이라고 하였다. 사안의 구체적 내용과 법원의 판단은 다음 과 같다.

532) Bianco v. Globus Med., Inc., 30 F. Supp. 3d 565, 579 (E.D. Tex. 2014) (“Furthermore, the devices disclosed in the Globus patents are significantly different from the device disclosed in Dr. Bianco's drawings.”). 533) Id. at 579 (“Assuming that the evidence supports a finding that Globus used Dr. Bianco's ideas as a starting point for its Caliber, Caliber–L, and Rise products, that does not mean that his contribution to the patents associated with those products was sufficient to render him a co-inventor.”). 534) 원고의 아이디어가 피고 회사의 연구원에게 전달되었다고 보는 것이 상식적이지 않을까? 만약, 그렇다면 연 결고리가 생기는 것이다. 원고의 아이디어가 피고 회사의 연구원에게 전달되었음을 원고가 증명하는데 실패한 것인가? 발명자․공동발명자 판단 법리에 대한 연구 179 법원은 단순히 달성목표를 제시할 뿐 그 목표를 달성하기 위한 수단을 제시하지 않은 자는 공동발명자가 아니라고 설명하는데,535) 원고가 제공한 도면 및 아이디어가 그 수준에 그칠 뿐인데 그 단순한 아이디어의 유용에 4백만불의 손해배상액을 인정하 는 것이 타당해 보이지 않는다.

... 이렇게 되면, 굳이 대상 판결에서 대법원이 판시한 것처럼 추정적인 의사의 존재를 인정하기 위해 새로운 형태의 의사가 있었는지를 판단할 필요가 없고, 의사의 불합치라는 문제에서도 벗어날 수 있다고 판단된다.”). 구성요소 부가 특허출원에 의한 영업비밀 기술탈취 방지를 위한 특허법의 공동발명 개선안 연구 192 7. 특허법 개정방안 가. 발명자 기재의 유효 추정 필요 공동발명자인지 여부는 규범적 판단의 대상이므로 이해관계인의 합의에 의하여 변 경될 수 없다.581) 그러므로, 공동발명자인지 여부는 사실관계에 의하여 실질적으로 판 단되어야 한다. 그러나, 발명자라고 기재하는 당시에 공동발명자는 나름대로의 규범 적 판단 후 해당 발명자도 공동발명자라고 판단한 것으로 보아야 한다. 그렇다면, 그 기재와 다른 주장을 하는 자가 그 주장에 대하여 규범적 증명을 하여야 한다. 특허등 록을 출원인과 공중의 사회적 계약에 의한 사문서라고 보든,582) 특허청에 의하여 작성 된 공문서라고 보든,583) 그 등록원부의 내용에 대하여 진정성이 추정되며, 그 내용과 다른 주장을 하는 자가 그 추정을 복멸할 증명책임을 부담하여야 한다.

(2) 공동발명자의 인정기준 影山론에 따르면 이하인 경우는 공동발명자로 인정된다. “① 객관적 측면을 불가 결하게 직접적으로 실시한 자(관계자 사이에 주관적 관여는 필요함) (직접형, 간접형), ② 객관적 측면을 직접적으로 실시한 자에 불가결하게 간접적으로 주관적 관여를 하 고 가담자 (주관적 관여가 객관적 측면을 했다고 동일시 할 수 있는 정도라고 생각됨) (간접형) 또는 ③ 객관적 측면에 직접적인 기여와 객관적 면을 행하는 자에 간접적으 로 가담을 맞춰 발명성립에 불가결한 기여를 한 자(결합형)가 된다.”164) 影山론에서 공동발명자의 판단은 우선 ① 관계자의 객관적 측면에 직접적인 기여 를 판단하고 ② 주관적 관여에 의한 간접적으로 가담한 순서로 고찰하게 된다.165) 그 이유는 관계자의 객관적 측면에 직접적인 기여가 더 명확하기 때문이라고 주장한다.

① 영업비밀침해죄(피고인 소외 OOO) 1심(의정부지방법원 2008.8.22.선고 2007고단2170 판결)에서 유죄 판결이 내려졌고, 항소와 상고 모두 기각되었다.4) ② 영업비밀침해금지가처분(채권자: 이 사건 원고, 채무자: 이 사건 피고) 채권자의 가처분 신청이 일부 인용되었는데(의정부지방법원 2009. 2. 19.자 2007카 합735 결정), 가처분 이의 사건에서 이 사건 영업비밀 보호기간은 OOO이 채권자 회 사에서 퇴직한 날인 2003. 6. 30.을 기준으로 3년을 넘지 못할 것이며,5) 따라서 이 사 건 가처분신청이 이루어진 2007. 11. 9.에 이미 영업비밀보호기간이 도과하였으므로 더 이상 영업비밀이 아니라는 이유로 가처분 결정이 취소되었고(의정부지방법원 2010. 8. 9.자 2009카합432 결정) 이에 대한 항고와 재항고가 모두 기각되었다.6) 정리해 보면, 영업비밀 침해 행위는 인정되었지만 영업비밀이 더 이상 존속하고 있 지 않은 이상 영업비밀 침해금지 가처분은 인정되지 않게 된 것이다.