한국사 _ (주)파파메이커스, 100% 국내 생산으로 안전한 아동복을 만드는 기업 | 군포철쭉축제

“이러한 대상 발명의 과제 및 작용효과는 H가 1984년경 실시된 실험에 대하여 확 인한 사상, 즉, 펌블-노즐에 대해서는 (1) 편평에서 선형의 분무가 형성되고, 양호(良 好)한 미립화 상태를 나타내고 실용적으로 W≦０.２ｍｍ가 타당하며, (4) 분무의 확대 각도는 색(sack) 직경(D)과 슬릿의 색(sack) 내벽으로부터의 절입량(切込量)(A)으로 규 정할 수 있을 가능성이 있는 것에 있어서 이미 시사되고 있던 점이다. 후기 (5)와 같 이, 상기(1)~(4) 중, (1)은 공지의 사항이었지만, (2)~(4)의 각 사항이 공지였다거나 용 이하게 발명할 수 있었다고 인정되지 않는다. 이러한 점에서 H를 대상 특허발명의 공 동발명자의 한 사람이라고 인정할 수 있다. 그러나 상기 (1)~(4) 이상에서 구성요소 E 의 구성을 이끄는 기술적인 정보가 그 실험의 결과로 밝혀진 것은 아니기 때문에, H 의 공헌은 원고의 공헌에 비하여 크다고 말할 수 없다.” (2) 원고의 공헌에 관하여 법원은 특허공보에 발명자로 기재된 원고를 공동발명자로 추정한 것이 아니고, 대 상 특허발명의 구체화의 단계에서 원고가 가장 크게 공헌하여 공동발명자 간의 지분 율이 가장 크다고 판단하였다.

한편 대법원 2009후2463 판결에 대해 학설은, 모인의 성립 범위 측면에서 실질적 동일성 기준보다는 넓은 의미로 보는 것으로 이해되는데, 다만 그 외연에 대해서는 견 해가 일치하는 것 같지는 않다.

4) 평가 원고는 특허공보에 기재된 공동발명자으로서 기본적으로 공동발명자 간 균등지분 율이 추정되어야 한다. 그런데, 법원은 원고의 주장이 상당하다고 인정하면서 원고가 주장한 50%에 약간 못 미치는 40%의 지분율을 인정하였다.

독일의 경우 우리나라와 유사하게 모인 출원 특허에 대한 정당한 권리자의 구제수 단으로 정당한 권리자 출원에 대한 우선권 제도와 특허권 이전청구제도를 모두 마련 하고 있는데, 우선권 제도는 거의 활용되지 않는다고 한다. 한편, 모인출원 특허에 대 한 정당한 권리자의 구제 수단으로 특허출원 특허 이전청구소송(독일 특허법 제8조) 에 있어서는 출원발명 또는 특허발명에 대한 정당한 권리자와 모인자의 기여도를 객 관적으로 평가하여 둘 모두의 기여가 인정되는 공유로 하는 것이 가능하다는 것이 판 례의 확립된 입장이다. 다만, 학설상 다른 견해는 존재한다.

“착상 자체가 새로운 것이라면 그 착상을 한 자가 진정한 발명자이고, 새로운 착상을 구체화한 자 역시 그 구체화가 통상의 기술자에게 자명한 것이 아닌 이상 발명자로 평가하여 공동발명자로 취급하되, 위 착상은 상당한 정도로 구 체적인 것이어야 하며 추상적으로 기술적 문제점을 해결하는 ‘방향성’만을 제 시한 정도로는 발명에 창작적으로 관여한 것으로 평가할 수 없다.”426) 422) 李素華, “專利法之發明人主義及發明人之認定”, 月旦法學教室, 163期, 2016, 34-35頁(“循此脈絡，對發明之完成 有「實質貢獻之人」，乃爲完成發明而進行精神創作之人其須就發明所欲解決之問題或達成之功效產生「構想」 （conception），並進而提出具體而可達成改構想之技術手段。”). 423) 智慧財產法院98年度民專上字第39號民事判決(“所謂「實質貢獻之人」係指為完成發明而進行精神創作之人，其須 就發明或新型所欲解決之問題或達成之功效產生構想（conception），並進而提出具體而可達成該構想之技術手段。 惟因發明係保護他人為完成發明所進行之精神創作，而非保護創作之商品化，是以使用他人所構思之具體技術手段 實際製造物品或其部分元件之人，縱然對物品之製造具有貢獻，仍難謂係共同發明人。”). 424) (“一發明專利可能是兩位或多位共同發明人所完成，其中每一位共同發明人均必須對發明之構想產生貢獻。構想是 在發明人心中，具有明確、持續一定的想法且應為完整可操作之發明，未來並可真正付諸實施，而無須過度之研究 或實驗。惟因發明係保護他人為完成發明所進行之精神創作，若僅是依他人設計規劃之細節，單純從事於將構想付 諸實施之工作，或從事熟練之技術事項而無創造行為於內之工作，抑或使用他人所構思之具體技術手段而進行實際 驗證，此等付諸實施之行為縱然幫助發明之完成，仍難謂係共同發明人。例如單純接受計畫主持人之指示，且依計 畫主持人所設計之實驗而完成實驗結果的助理，並不能稱為共同發明人；或公司品管部經理提出產品缺點，交由研 發部門改進開發新產品，則品管部經理不能稱為共同發明人；或大學之實驗室分離出一純化合物，而交由大學之貴 儀中心進行分析確認化合物之具體結構，該貴儀中心之分析人員不能稱為共同發明人；抑或公司專利部門之專利工 程師協助發明人申請專利時撰寫發明專利說明書，該專利工程師仍不能稱為共同發明人。”). 425) 陳秉訓, “論共同發明人之認定與管理”, 全國律師 19卷10期, 2015, 12頁. 426) 조영선, 「특허법」 제4판, 박영사, 2013, 226-227면 참조. 발명자․공동발명자 판단 법리에 대한 연구 155 o 새롭고 구체적 착상 = 발명 - 새롭지 않은 착상 ≠ 발명 - 구체적이지 않은 착상 ≠ 발명 o 그 착상의 자명하지 않은 구체화 = 공동발명427) - 그 착상의 자명한 구체화 ≠ 발명 <표 11> 착상과 구체화(조영선 교수 설명) 위 조영선 교수의 설명은 다음과 같이 요약될 수 있다.

서울고등법원은 다음과 같이 설시하였다.

그런데 공동발명인 경우에는 공동발명자 전원의 합의에 따라 지분율을 결정하기 어려운 경우도 있고 심지어 지분율이 애당초 불명확한 경우도 적지 않다. 그래서 관련 된 경우 공동발명자 각자의 지분비율을 어떻게 결정할 것인지가 문제가 된다.120) 사) 소결 小林健男론은 일본에서 공동발명자 간의 지분율 산정방법을 최초로 제시한 것으로 보인다. 1975년의 이론이라는 점에서 나름 의의를 가진다. 두 회사 사이의 공동연구개 발계약에 있어서는 그 결과물인 특허의 지분을 미리 결정함에 있어서 투여인력, 투여 경비, 기자재 등을 중요하게 볼 수 있다. 그러나, 공동발명자 결정 및 지분율 산정은 그러한 비창작적 요소와는 무관한 것이다. 이런 견지에서 필자는 小林健男의 이론을 격렬하게 반대한다. 小林健男의 이론은 두 회사 사이에 특허의 지분을 결정함에 있어 서는 활용될 수 있으나, 발명자 지분율을 결정함에 있어서는 활용될 수 없는 것이다.

2) 知的財産高等裁判所 平成19年(2007)7月30日 平成18年(行ケ)第10048号 判決 법원은 먼저 발명자는 청구항을 기준으로 판단한다고 설시한 후,556) 청구항 구성요 소 중 특징적 부분에 기여한 자가 발명자라는 법리를 제시하였고, 그 후 그 특징적 부 분에 여러 명이 기여한 경우 그들이 공동발명자가 될 수 있다고 설시하였다. 그 설시 에서 그들 사이의 주관적 의사교환의 필요성에 대하여는 언급하지 않고 있다.

2. 주요국의 법리 일본의 경우 최고재 판결은 없지만 하급심 판결은 ‘실질적 동일성’ 기준을 적용하 는 것으로 보인다.

Sabatino BIANCO, MD, Plaintiff-Appellee, v. GLOBUS MEDICAL, INC., Defendant-Appellant., 2015 WL 739894, at 5 (Fed. Cir. 2015) (“Spinal fusion surgery is used to treat conditions such as degenerative disc disease, in which the space between two vertebrae in the patient's spine become compressed. To correct this condition, a surgeon may implant a device called an intervertebral spacer between the two vertebrae. The spacer replaces the degenerated disc tissue and maintains proper alignment and spacing of the vertebrae, allowing the spine to heal. As the spine heals, the vertebrae on either side of the spacer fuse together, as reflected in the name, ‘spinal fusion surgery’.”). 524) Sabatino BIANCO, MD, Plaintiff-Appellee, v. GLOBUS MEDICAL, INC., Defendant-Appellant., 2015 WL 739894, at 7 (Fed. Cir. 2015) (“This drawing depicted a scissor jack element connected to a long shaft with a dial at end. A112. The scissor jack element resembled two crossed arms connected by a pivot, like the letter X. The arms supported two parallel plates, the distance between which could be increased or decreased by rotating the arms about the pivot. Bianco explained that his scissor jack element was expandable and contractible continuously.”). 525) Id. at 8 (“At the time Bianco provided Globus with his drawings, Globus sold a variety of spinal fusion spacers, but not an adjustable-height spacer. A111; A6520. Historically, intervertebral spacers for spinal fusion surgeries came in a variety of fixed sizes, and surgeons would select the size appropriate for their patient when performing a surgery.”). 526) Id. at 8 (“Bianco admitted that no one ever told him ‘that an instrument or implant, based on the drawings that [he] gave to Globus, would work.’”). 527) Id. at 9. 발명자․공동발명자 판단 법리에 대한 연구 177 원고(Dr. Bianco)는 ① 피고(Globus Medical)가 원고의 영업비밀을 유용 (misappropriation)하였다는 점 및 ② 원고가 대상 특허발명의 공동발명자가 되어야 한다는 점을 주장하였다. 즉, 원고는 본인이 대상 특허발명의 단독발명자라고 주장하 는 것은 아니며, 본인이 전달한 기술과 대상 특허발명이 실질적으로 동일하지 않은 점 은 인정하고, 다만, 대상 특허발명에 본인이 일부 기여하였음을 주장하는 것이다.

1009) Robert A. Matthews, Jr., 4 Annotated Patent Digest §§ 26:116-26:119 (December 2018 Update). 1010) 布井要太郞, 前揭論文(共同発明者の要件), 14-18頁. 구성요소 부가 특허출원에 의한 영업비밀 기술탈취 방지를 위한 특허법의 공동발명 개선안 연구 392 주요국의 공동발명 성립요건을 비교해 보면, 기술적 사상의 창작에 대한 (실질적) 기여를 요구하고 있다는 점이 공통된다(물론 ‘기여’의 구체적 의미는 반드시 일치하지 않을 수 있다). 반면, 우리나라 미국 일본은 원칙적으로 ‘협력관계’를 요구하고 있는 반면 독일의 경우 반대 견해도 있지만 판례와 통설은 ‘공동작업의 인식’은 불필요하다 는 것이 차이점이다.

2) 혼화 혼화는 “동산과 동산이 서로 섞이는 것이다. 고체가 섞이는 혼합과 유체가 섞이는 융합의 두 가지”320) 종류로 볼 수 있다. “어느 것이든 객체인 물건이 다른 동종(고체 또는 유체)의 물건과 쉽게 섞여 원물을 식별할 수 없게 된다는 특성이 있다.” 이에 따 라서 혼화는 동산의 부합에 관한 규정을 준용된다.321) 3) 가공 가공이란 타인의 동산에 인간의 노력을 더하여 새로운 물건을 만들어 내는 것을 말한다.322) 가공물의 소유권은 원칙적으로 원재료의 소유자에게 속할 것이다.323) 예외 적으로 가공으로 인한 가액의 증가가 원재료의 가액보다 많은 액수인 경우에는 가공 자의 소유로 된다.324) 이때 가공자가 재료의 일부를 제공하였을 때에는 그 재료의 가 액은 증가액에 보태서 소유권의 귀속을 결정하여야 한다.325) 즉 “가공이 발생한 물건의 소유관계에 대하여 원재료의 소유자가 소유권을 갖는다 는 재료주의와 가공한 자가 소유권을 갖는다는 가공주의가 존재하는데 이에 대하여 318) 민법 제257조(“동산과 동산이 부합하여 훼손하지 아니하면 분리할 수 없거나 그 분리에 과다한 비용을 요할 경우에는 그 합성물의 소유권은 주된 동산의 소유자에게 속한다. 부합한 동산의 주종을 구별할 수 없는 때에 는 동산의 소유자는 부합당시의 가액의 비율로 합성물을 공유한다.”) 319) 대법원 2007. 7. 27. 선고 2006다39270, 39278 판결(“어떠한 동산이 부동산에 부합된 것으로 인정되기 위해서 는 그 동산을 훼손하거나 과다한 비용을 지출하지 않고서는 분리할 수 없을 정도로 부착ㆍ합체되었는지 여부 및 그 물리적 구조, 용도와 기능면에서 기존 부동산과는 독립한 경제적 효용을 가지고 거래상 별개의 소유권 의 객체가 될 수 있는지 여부 등을 종합하여 판단하여야 할 것이고(대판 2003.5.16., 2003다14959, 14966 등 참 조), 부합물에 관한 소유권 귀속의 예외를 규정한 민법 제256조 단서의 규정은 타인이 그 권원에 의하여 부속 시킨 물건이라 할지라도 그 부속된 물건이 분리하여 경제적 가치가 있는 경우에 한하여 부속시킨 타인의 권 리에 영향이 없다는 취지이지 분리하여도 경제적 가치가 없는 경우에는 원래의 부동산 소유자의 소유에 귀속 되는 것이고, 경제적 가치의 판단은 부속시킨 물건에 대한 일반 사회통념상의 경제적 효용의 독립성 유무를 그 기준으로 하여야 한다.”). 320) 송덕수, 「물건법」 제3판, 박영사, 2017, 345면 참조. 321) 민법 제258조(“전조의 규정은 동산과 동산이 혼화하여 식별할 수 없는 경우에 준용한다”) 322) 송덕수, 「물건법」 제3판, 박영사, 2017, 345면 참조. 323) 민법 제259조 제1항(“타인의 동산에 가공한 때에는 그 물건의 소유권은 원재료의 소유자에게 속한다.”). 324) 민법 제259조 제1항 단서(“그러나 가공으로 인한 가액의 증가가 원재료의 가액보다 현저히 다액인 때에는 가공자의 소유로 한다.”) 325) 민법 제259조 제2항(“가공자가 재료의 일부를 제공하였을 때에는 그 가액은 전항의 증가액에 가산한다.”). 공동발명자 판단 법리 및 공동발명자 간의 지분율 산정방법에 관한 우리나라, 일본, 미국, 중국 및 독일의 법리연구 129 우리(중국) 민법 제259조는 프랑스 민법을 모법으로 한 일본 민법을 계수한 영향으로 원칙적으로 재료주의를 취하여 원재료의 소유자가 물건의 소유권을 갖지만, 예외적으 로 가공으로 인한 가액의 증가가 현저히 다액인 경우 가공주의를 취하여 가공자가 물 건의 소유권을 갖는다고 정하고 있다.”326) 4) 소결 위 물권법의 첨부의 개념이 공동발명자 법리에 적용될 수 있는지를 구체적으로 검 토할 필요가 있다. 동산에서의 첨부가 한 개 물건과 다른 한 개 물건을 결합한 것이고 특허에서의 첨부는 하나의 기술사상과 다른 하나의 기술사상을 결합하는 것이 된다.

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) 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····················································································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.

“I는 ‘Ｌ1≧４.５×Ｗ’의 관계식을 착상한 것으로 대상 특허발명의 기술사상을 보다 구체화한 것이고 특정한 것이다. I의 행위는 공지의 기술과 비교하여 특허성이 있는 부분을 추출하여 특허청구범위에 기재하는 명세서의 작성을 담당자가 하는 행위에 대 상 신고서를 기본으로 하여 대상 신고서에 기재되어 있지 않은 사항 즉 I 자체의 디젤 엔진의 연구개발경험에 뒷받침된 기술적 지식을 더해서 발명을 발전시켜, 보다 구체 적으로 명확하게 한 것이며, I의 공헌은 공동발명자로서의 공헌이라고 해야 한다. 그 러나 I는 ‘Ｌ１≧４.５×Ｗ’의 관계식을 예측하기에 이른 것은 대상 신고서에 기재된 원고의 실험결과에 근거한 것으로 대상 공헌이 원고에 비해서 크다고 할 수 없다.” 다) 지분율 산정 법원은 공동발명자 인정에 있어서 대상 특허발명의 청구범위를 기초로 하고 그 구 성요소 중 특허성이 있는 요소에 착상 및 구체화 단계의 공헌을 한 자를 발명자로 인 정하였다. 결론적으로 법원은 원고는 50%, H는 30%, I는 20%의 지분율을 가진다고 판시하였다.