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번호 : 1336 작성자 : master  쪽지보내기 작성일 : 2012-05-25 조회수 : 2842
제목 :

직무발명제도(편람 2011.12)

직무발명제도(편람 2011.12)

<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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조기공개신청을 취하할 수 있나요?
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