초록 일부
[영문]
With the advent of the 21st Century we are living in the so-called knowledge-based society. Economically and technologically advanced countries in the world put the economically useful knowl...
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초록 전체
[영문]
With the advent of the 21st Century we are living in the so-called knowledge-based society. Economically and technologically advanced countries in the world put the economically useful knowledge creation and application on their top priorities as a strategy for the international competition. And they seek to establish the national system for the management of intellectual property right(IPR).
* A thesis submitted to the committee of Graduate School, Chungnam National University in partial fulfillment of the requirements for the degree of Master of Law Conferred in August 2002.
It is essential for universities to strengthen their function of research and IPR management in order to follow the external demands. To establish the IPR management system in the universities, it is also necessary to clarify the ownership of scholarly works created by faculty members.
The purpose of this study is to propose the effective and systemic management method for the academic research results by analysing the ownership of inventions and literary works created by faculty members and the current state of the IPR management in the Korean universities.
It is relatively common, particularly in the scientific field, for employees to invent things. Who owns the employee's invention will depend on whether or not the invention was made in the course of the employee's employment. If that so, inventors originally own the rights to their inventions whether or not the invention is developed within their employment. Despite this, employers may take ownership, or at least shop rights, of an employee's invention in several ways.
An "employee's invention in the article 39 of the korean patent law(EI)" means an invention made by an employee that is within the scope of business operations of his or her employer, and the activity leading to which is within the scope of the present or past duties of the employee. An "employee" refers to any person who has an employment relation with the employer, like a regular employee, as well as any person who is in a relationship providing subordinated labor service to the employer, irrespective of whether such employee serves as a part-time employee, fixed-term employee for any specific assignment or otherwise. The "scope of business operations" of the employer includes not only the scope of business activities as described in the its articles of association, or as currently conducted by it, but also businesses it plans to expand. Of the scope of business operations of the employer, only inventions made in connection of the duties of the employees that have created such inventions fall within the EI.
From this point of view the ownership of scholarly works created by faculty members depends on the funding sources of the R&D. If the invention was developed without the university's resources and is outside the realm of the professor's duty(research and teaching area), the invention belongs to the inventor(professor) and the university has no rights whatsoever to the professor's invention. In this case the professor owns the exclusive right for the free invention. On the contrary if a professor created invention with the university's support, he owns the invention originally but cannot get the exclusive right of that. Because his invention is classified as an EI, his employer(university) is given "shop right," or the license to use the invention without paying royalties.
Typically the university acquires right to patent for the professor's invention created by the university's support according to the rules of the school. And the university gives the professor some portion profit by the licensing of the invention.
For the effective management of the academic research results, each university had better define clear management rules for the professor's invention and establish IPR management system. And the university should make a responsible and independent organization for IPR management with many skilled and professionalized administrators. However, the size and form of the organization depend on the R&D funding amount of the university.
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