지적재산권의 보호범위에 관한 연구

Abstract

The scope of protection conferred by a patented invention shall be determined by the subject matters described in the claims. The protection scope of a registered design shall be determined by the matters entered in an application for design registration, the design represented in a drawing or photograph attached to the application, and in the explanation for design described in the sample and drawing. The scope of protection of registered trademark shall be determined by a trademark specified in an application for trademark registration and the scope of protection of designated goods shall be determined by the goods specified in an application for a trademark registration or an application for registration of the conversion of the classification of goods. Thus, the protection scope of industrial property is determined by the subject matters described in the claims, the matters entered in an application for design registration, the design represented in a drawing or photograph attached to the application, and in the explanation for design described in the sample and drawing and a trademark specified in an application for trademark registration.

Therefore, the protection scope described in applications directly becomes the scope of industrial property. So working a registered patent, working a registered design and using a registered trademark without any permission constitute infringement. In this case the owner of a industrial property could demand a person who is infringing on his industrial property right to discontinue or refrain from such infringement and also may claim for damages. A copyright not requiring fulfillment of any procedures or formalities, commence from the time of its creation. When a person exploit a work without any authorization and the exploitation is not fair use, his exploitation directly constitutes infringement. Any person who has the copyright, may demand of a person who is infringing to suspend such act and also may claim for damages. Anyway the protection scope of industrial property is influential not only in same scope. In the meaning of same invention, same design and same trademark, this the same doesn't mean oneness. The protection scope of industrial property right is influential also in substantial identity. Namely, the protection scope of industrial property is influential not only in same scope but also in similar scope. In case of patented invention, the term, similarity is not used. But because the protection scope of patented invention include equal scope, the result is same. An invention thats effectiveness is similar to that of patented invention is not regarded as same as patented invention, but regarded as equal to patented invention. Even though the elements of the invention are different from those of patented invention.

Community of limitation on intellectual property is that if there is a flaw in existent requirement, the intellectual property can not claim its right. A typical thing is an industrial property consisted of publicly known thing. An industrial property consisted of publicly known thing, though it is registered, the industrial property's protection scope is limited. This corresponds to a publicly known art in patent, a publicly known form in design and in trademark a publicly known mark. Patented invention, registered design and registered trademark are borne by creative act, therefore a registered and creative industrial property has the property right. If there is no creativity, it means that there is a flaw in existent requirement for industrial property. Industrial property that has this flaw, though it is registered, has no protection scope. This is the reason why there is no protection scope to publicly known art, publicly known design and publicly known trademark. So, though patented invention, registered design and registered trademark, if one of them consisted all by publicly known thing, we can not authorize any right. And if one of them is consisted partly by publicly known thing, this part has no value in the protection scope. Industrial property, once registered, even if there is a flaw in existent requirements, the court can not disregard this right until nullity trial declares this industrial property right invalid. So there is a question whether the court can declare industrial property right invalid because there is a flaw in existent requirements in the case of infringement before nullity trial declaring the industrial property right is invalid. But the court has not approved those industrial rights. In the result of court's approving free art flea, if an object invention is consisted of only publicly known arts, the court admits the object invention does not infringe patented invention without arguing patented invention's substantial identity nor equivalent doctrine. This free art flea in patent is expressed as a free design in registered design and as a free mark in registered trademark. But all requirements for patent, design and trademark do not limit the protection scope of patented invention, registered design and registered trademark. The court could judge only the flaw on novelty of the industrial property right. The court can not judge whether an invention could easily be made prior to the filing of the patent application by a person having ordinary skill in the art to which the invention pertains before nullity trial declares the industrial property right is invalid. Anyway the supreme court have lately approved a theory, abuse of rights in a case of industrial property right infringement. Therefore the court might judge an industrial property right invalid on all requirements for patent, design and trademark by the abuse of rights theory.

In the Copyright Act, there is no system of nullity trial. Because a copyright not requiring fulfillment of any procedures or formalities, commence from the time of its creation, in the case of infringement the court judges whether the subject matter is a work or not. If the subject matter doesn't fulfill creativity, the protection scopes could not be approved. In copyright infringement case the process of judgment is very simpler than that in industrial infringement cases. Unlike patent that protect invention, the highly advanced creation of technical ideas utilizing rules of nature, design and trademark can not be functional. Function is the reason why a thing be called by its name. Designs consisting solely of a form that is unable to secure the functions of the article shall not be registered. Even if it registered, its protection scope is none. If a design and three dimensional shaped trademark consist partly of the form that is essential to secure the functions of goods and partly of the shape that is not, the design and trademark as a whole could be registered. But the importance of the part that is essential to secure the functions of goods lower than that of the other part. In the aspect of copyright too, the protection scope of the functional expression is limited. An expression of a work has any relation to function means there is no or extremely narrow possibility of choice in the expression. When the expression is merged with idea, we can call the expression functional. In the respect of this point of view, we can know that function is related to expression. Compared with patent statute that protects the creation of technical ideas, design protection act and trademark act protect visible expression. Copyright act also protects not idea, but expression.