<목 차> I. 직무발명제도의 의의 ························································································· 3 1. 직무발명의 개요 ····························································································· 3 2. 직무발명제도의 목적 및 취지 ······································································· 5 3. 직무발명제도의 중요성과 정부의 지원시책 ·················································· 7 (1) 직무발명제도의 중요성 ············································································· 7 가. 독점·배타적 권리 확보를 통한 기술개발 투자의 확대 ······················· 7 나. 기술혁신 ································································································· 8 다. 기업의 성장 ···························································································· 8 라. 국가 산업 발전 ······················································································ 8 (2) 정부의 지원시책 ······················································································· 8 4. 직무발명에 관한 발명진흥법의 주요내용 ··················································· 10 5. 직무발명제도에 관한 외국의 입법례 ·························································· 15 (1) 미국 ········································································································· 15 (2) 독일 ········································································································ 20 (3) 일본 ········································································································ 23 (4) 중국 ········································································································ 27
II. 직무발명의 성립요건 ····················································································· 33 1. 개설 ·············································································································· 33 2. 종업원등이 그 직무에 관하여 발명한 것 ·················································· 33 (1) 종업원등의 개념 ····················································································· 33 가. 종업원 ·································································································· 34 나. 법인의 임원 ························································································· 36 다. 공무원 ·································································································· 37 (2) 직무 ········································································································ 37 (3) 발명 ········································································································ 38 (4) 직무발명자의 결정 ················································································· 39 3. 성질상 사용자등의 업무 범위에 속하는 발명 ··········································· 43 (1) 사용자의 개념 ························································································ 44 (2) 업무 범위 ······························································································· 45 4. 발명을 하게 된 행위가 종업원등의 현재 또는 과거의 직무에 속하는 발명 · 47 (1) 발명을 하게 된 행위 ············································································· 47 (2) 현재 또는 과거의 직무 ········································································· 49 5. 대학 교수등의 직무발명 성립요건 ······························································ 51
III. 직무발명의 권리귀속 ···················································································· 57 1. 개설 ·············································································································· 57 2. 직무발명의 귀속에 관한 이론(발명자주의 v. 사용자주의) ······················ 57 (1) 발명자주의 ······························································································ 58 (2) 사용자주의 ····························································································· 58 (3) 발명진흥법의 태도 ················································································· 59 3. 종업원의 권리와 의무 ················································································ 60 (1) 종업원의 권리 ························································································· 60 가. 특허를 받을 수 있는 권리 내지 특허권의 취득 ······························· 60 나. 발명자로서의 인격권 ············································································ 61 다. 정당한 보상을 받을 권리 ···································································· 61 라. 조정신청권 ··························································································· 63 (2) 종업원의 의무 ························································································ 64 가. 협력의무 ······························································································ 64 나. 비밀유지의무 ······················································································· 64 다. 직무발명 완성사실의 통지의무 ··························································· 65 4. 사용자의 권리와 의무 ················································································ 67 (1) 사용자의 권리 ························································································ 67 가. 통상실시권 취득 ·················································································· 67 나. 승계취득 또는 전용실시권을 설정할 권리 ········································· 68 다. 조정신청권 ··························································································· 69 (2) 사용자의 의무 ······················································································· 69 가. 승계여부의 통지의무 ··········································································· 69 나. 보상의무 ······························································································ 70 5. 직무발명의 사전예약승계 ············································································ 72 6. 직무발명의 권리귀속 관계 및 절차(표) ···················································· 80
IV. 직무발명에 대한 보상 ·················································································· 83 1. 정당한 보상을 받을 권리의 성격 ······························································· 83 2. 보상의 종류 ································································································ 87 (1) 발명(제안)보상 ························································································ 87 (2) 출원보상 ································································································· 88 (3) 등록보상 ································································································· 88 (4) 실시(실적)보상 ······················································································· 88 (5) 처분보상 ································································································· 88 (6) 출원유보보상 ·························································································· 88 (7) 기타 보상 ······························································································· 89 3. 보상형태 및 보상액의 결정기준 ································································· 89 4. 보상금의 산정방식 ······················································································· 91 (1) 정액법 ··································································································· 92 (2) 평가점수법 ···························································································· 91 (3) 슬라이드법 ······························································································ 93 5. 직무발명보상규정 ························································································ 94 (1) 필요성 ····································································································· 94 (2) 직무발명보상규정의 규율 내용 ····························································· 95 (3) 사전예약승계 등 승계절차 ···································································· 95 (4) 직무발명의 평가 및 보상 ······································································ 96
V. 공무원 직무발명제도 ···················································································· 101 1. 공무원 직무발명의 개념 및 요건 ······························································ 101 (1) 공무원직무발명 보상규정상 공무원 직무발명의 주체 ························· 101 (2) 공무원 직무발명의 요건 ······································································· 101 (3) 공무원직무발명 보상규정의 적용제외 ················································· 102 가. 국·공립학교 교직원 ··········································································· 102 나. 지방공무원 ························································································· 102 2. 공무원 직무발명의 관리 ··········································································· 102 (1) 공무원 직무발명(국유특허) 관리의 개요 ············································ 103 (2) 공무원 직무발명의 승계(발명기관의 장이 관장) ······························· 103 가. 발명의 신고 ······················································································· 103 나. 직무발명의 국가승계 ········································································· 103 다. 국가승계발명의 출원 ········································································· 103 (3) 공무원 직무발명의 등록 ······································································ 104 3. 공무원 직무발명의 처분 ··········································································· 104 4. 공무원 직무발명에 대한 보상 ·································································· 107 (1) 보상금의 종류 ······················································································ 108 가. 등록보상금 ························································································ 108 나. 처분보상금 ························································································· 108 다. 기관포상금 ························································································· 108 (2) 보상금 등의 지급방법 ········································································· 108 가. 지급 시기 ·························································································· 108 나. 발명자가 2인 이상인 경우 ································································ 109 다. 발명자가 전직 또는 퇴직, 사망한 경우 ········································· 109 (3) 보상금등의 반환 ·················································································· 109 <부록 1. 직무발명 모델규정> <부록 2. 직무발명 관련법령>
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