S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 46, Number 1/4 (2005)
실용신안제도에 의한 "소발명"의 효과적인 보호방안
Effective Protection of "Small Innovation" through Utility Models
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.46 No.4, pp. 285-311
- 보상책임체제(compensatory liability regime); direct protection of innovation; 실용신안법; 등록된 산업재산권; 무심사제도
- Many scholars argue that utility models are generally useful for developing
countries to encourage innovations. This is because utility models require lower
novelty and inventive step compared with patent, and thus they can provide
protection for small innovations. In general developing countries have not enough
resources to produce a major invention. Innovations occurred in these countries
are generally small and gran-sized. These innovations cannot be protected by a
patent. If there is no utility model system in these countries and examinations
are made by the same standard that is applied to international patent
applications, such innovations would not be able to receive any protection.
On the other hand, under the liability regime, follow-on innovators can use the
first comer's innovation only if they are willing to pay a certain royalty to the
first comer. This lowers transactions costs and reduces undesirable social
behaviour such as free riding appropriation. Utility models that are modified by
the concepts of compensatory liability regimes could solve the critical issue of
the relationship between the first comer and second comers in sequential
innovation, i.e. encouraging innovation without impeding follow-on innovations.
Thus, I suggest the following:
① The basic concept of compensatory liability regime should be introduced
into the current utility model system.
② Substantial examination for novelty should be done in order to minimize
the negative effect of an unexamined utility model right.
③ The inventive step requirement should be abandoned because most of...