밴처- 아산재단, 1240명에게 금년도 장학금 50억원 전달 ]]> | 군포철쭉축제

부정경쟁행위(차목)의 경우 아이디어(경제적 가치를 가지는 타인의 기술적 또는 영 업상의 아이디어가 포함된 정보)를 보호대상으로 하며, 사업제안, 입찰, 공모 등 거래 교섭 또는 거래과정에서 아이디어를 그 제공목적에 위반하여 자신 또는 제3자의 영업 상 이익을 위하여 부정하게 사용하거나 타인에게 제공하여 사용하게 하는 행위(다만, 아이디어를 제공받은 자가 제공받을 당시 이미 그 아이디어를 알고 있었거나 그 아이 디어가 동종 업계에서 널리 알려진 경우에는 그러하지 아니하다)가 부정경쟁행위(차 목)에 해당한다.

1) 원고의 주장 원고는 대상 발명5에 대하여 특허출원은 원고가 단독으로 집필하고 공동발명자 간 의 그의 지분율은 100%로 주장하였다.

(1) 및 (2)에 대해서 발명이 물체계이거나 물질계인가를 검토하는 것이 참고가 된 다. 갑이 창출한 공지요소 a를 활용하여 을과 병이 공동으로 연구하여 (a+b) 발명을 창 출하였고 그 발명의 신규성 및 진보성이 인정되는 경우, b 요소로 인하여 신규성 및 진보성이 인정되었으며, 을과 병이 공동으로 그 b 요소의 창출에 기여하였다.

(ii) 항소심 법원은, 청구항 1은 충돌시에 대비한 주름살 구김을 만드는 고밀도 자 동차 구조설계부 또는 안전설계부에의 사용만을 다루고 있다고 전제하여, 청구항 1을 그 문구대로 해석하였다. 청구항 1은 자동차 구조설계부 또는 안전설계부로서 고밀도 철강으로 섭씨 320도에서 섭씨 400도 범위에서 열처리한 후에 만든 구조부의 사용과 관련된 것이다. 이에 따라 보호받는 것은 섭씨 320도에서 섭씨 400도까지의 고열로 처 리된 고밀도 철강으로 만든 모든 구조설계부 또는 안전설계부이다. 그런데 명세서 단 락 2 및 9에서 알 수 있듯이 분쟁특허의 청구범위는 광범위한 구조설계부 및 안전설 계부의 개념에 기초하고 있다.

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.

제5장 특허법상 모인(冒認) 법리 주요국의 모인 법리를 쟁점별로 정리해 보면 다음과 같다.

Ⅲ. 미국의 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법 미국은 착상(conception)을 한 자를 발명자로 정의한다. 그 착상 후의 구체화 (reduction to practice)는 발명의 행위가 아니다. 다만, 그 착상을 구체화하는 과정에 서 새로운 착상을 한 자는 그 새로운 착상의 발명자가 된다. 어떤 착상이 발명으로 인 정되기 위해서는 통상의 기술자가 그 발명을 용이하게 실시할 수 있을 정도로 구체적 어야 한다.

따라서 ‘자연법칙’, ‘기술적 사상’, ‘창작’이라는 단어가 발명의 정의에 중요한 키워드 가 된다. 影山론은 그 세 용어를 기초로 설명하고 있다. 즉 발명은 “원리를 고려한 착 상” 및 “모델 설정”으로 이루어진 것이라고 정의한다.123) 이하에서 影山론 중 “원리를 고려한 착상” 및 “모델 설정”의 구체적인 의미를 살핀다.