• 한국중재학회지:중재연구
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• 제21권2호
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• pp.27-46
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• 2011

In the intellectual based society of the 21th century, intellectual property of nation and enterprise management has been the key element of nation's competitiveness and development. Therefore in countries like Korea, China, and many other countries, intellectual property of advancement strategy are being constructed and intellectual properties are protected at national level. Top priority task of protecting the intellectual property is to efficiently resolute intellectual property right disputes. Considering the nature of intellectual property right and arbitrage system, arbitration to solve intellectual property disputes is realistically the best method. However, not all cases of them are qualified. In order to relieve the intellectual property disputes through arbitration, qualification must be obtained. During the process, generally and globally, intellectual property right dispute is evaluated by three parts, intellectual property right contract dispute, intellectual property right violation dispute, and intellectual property right validity dispute. Based on UN's "Convention on the Recognition and Enforcement of Foreign Arbitral Awards Agreement" in 1958, June 10th, in New York, both arbitrage organization and judgment can be approved in both Korea and China countries. However, as of today, there is a big gap of arbitration qualification between two countries, which can be troublesome if intellectual property right disputes arise. For instance, in Korea, intellectual property right contract disputes and intellectual property right violation disputes are both generally accepted as arbitration qualification. However for intellectual property right validity dispute, arbitration qualification is only accepted for non-registered intellectual property as in copyright entity. It does not apply to other registered intellectual property right as in patents. In China, arbitration qualification is accepted for intellectual property right contract dispute, and also accepted for intellectual property right violation dispute to copyrights but restricted to others. As for intellectual property right validity dispute, arbitration qualification is completely denied. Therefore, when there is an intellectual property right dispute between Korea and China, the biggest problem is whether China will accept arbitrage judgments made in Korea. Theoretically, arbitrage judgement made in Korea should be also accepted in China's court. However, considering the criticism of China's passive nature of arbitration qualification for its own local intellectual property right disputes, it's very unlikely they'll actively accept arbitrary judgment made in foreign countries. Korea and China must have a more open minded approach for intellectual property disputes and arbitration qualification. Base on WTO's Intellectual Property Right Agreement, it's being defined as private right. Therefore, sovereign principle should be the basic principle of solving intellectual property right disputes. Currently, arbitration qualification is expanding internationally. So both Korea and China must also follow the trend expand the arbitration qualification with a more open minded and forward looking approach, for the good of intellectual property disputes.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.67-98
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• 2009

Recently there are many cases on the intellectual property dispute. Among them some cases are solved through mediation and arbitration. Mediation and arbitration hold some advantage over court proceeding for intellectual property dispute. However the traditional litigation system has material limitation to settle down international intellectual property dispute. Without arbitration, litigation in court would be the only choice in case of no consensual settlement between the disputing parties. However, once being aware of the usefulness of the arbitration, people in international business widely realize that arbitration is generally preferred to litigation. Mediation is a method of settling dispute outside of court setting and many mediation committee are established since 1986 in Korea. Arbitrability has been a crucial issue in the intellectual property dispute. In most developed countries including the U.S.A. and Switzerland, arbitrability in the intellectual property dispute has been changed in recent years by law. Now in resolving the dispute with international intellectual property is needed for legal research, experience, working practices and knowledge of the intellectual property industry and so on.

• 한국중재학회지:중재연구
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• 제23권2호
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• pp.165-190
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• 2013

As intellectual property rights are perceived as the key element of creating added values and securing competitiveness, the result of intellectual property rights disputes play an important role in the success of companies. As seen from above strong points of an Alternative Dispute Resolution (ADR) system in Chapter III, intellectual property rights disputes increasingly tend to be resolved by ADR rather than litigation. Discussions about and operation of ADR are already being actively carried out in many countries, and major ADR institutions have been acquiring experience in a variety of intellectual property rights disputes. To enhance the use and recognition of ADR as the way of resolving the Intellectual Property Rights disputes in Korea, this study suggested the following three ways. First, domestic ADR institutions, the Korean Commercial Arbitration Board (KCAB) will need to establish cooperative systems with prominent overseas institutions to lead the disputing parties to fair resolutions as well as to instill trust in international arbitration institutions. Second, they will need to contribute to the promotion of arbitration systems throughout society by developing and applying a variety of arbitration systems as well as securing a pool of professionals. Finally, the arbitration rules will need to be continuously improved to deal with disputes promptly and reinforce privacy protection.

• 한국중재학회지:중재연구
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• 제25권3호
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• pp.155-184
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• 2015

This paper addresses the question of what kinds of dispute resolution choices can effectively handle complex intellectual property disputes, given the rising importance of IP, the increasing frequency and complexity of IP disputes, and the lack of research on dispute resolution strategies. For this analysis, the study adopted the analytic hierarchy process approach, which covers complex, multi-criteria decision problems, to quantify the expert's judgments on IP dispute resolution choice. Its results show that the effectiveness of resolution methods differs, depending on the type of IP dispute classified into seven issues, which are (i) requirement for validity of IP right, (ii) range and duration of IP right, (iii) transfer of IP right, (iv) licensing, (v) use of IP right, (vi) declaration of IP infringement, and (vii) estimation of damage. The disputes over IPR ownership and IP infringement remain challenging issues in due to strong requirement of the cross-border enforcement. Alternative dispute resolution (ADR), especially arbitration, is determined to be a more effective method to deal with international IP disputes, but various advanced types of ADR techniques should be further developed to deal with the increasing complexity of IP disputes.

• 한국중재학회지:중재연구
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• 제31권3호
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• pp.69-89
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• 2021

General lawsuits can be chosen as a method of resolving patent disputes. However, a significant amount of time and money is wasted on litigation until the dispute is resolved. The Intellectual Property Framework Act in Korea requires the government to simplify litigation procedures and improve litigation systems to resolve intellectual property disputes quickly and fairly. As a result, accurate and timely resolution of patent disputes is given importance by the Korean government. Interest in arbitration as an alternative method of dispute resolution is growing. Although dispute resolution through arbitration is effective, the issue of resolving patent disputes through arbitration can lead to the arbitrability of patent disputes. It is therefore necessary to examine arbitrability of patent contracts and validity disputes. Korea has made efforts to reflect the model arbitration law of the United Nations Commission on International Trade Law for quick judicial resolution of patent disputes. Korea has also strengthened related systems for alternative resolutions. However, improving the arbitration system will necessitate a thorough examination of the systems and practices of the United States which is the country in the forefront of intellectual property. This paper examines the arbitrability of Korea's patent dispute and makes recommendations for more efficient dispute resolution system changes.

• 한국벤처창업학회:학술대회논문집
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• 한국벤처창업학회 2007년도 추계학술대회
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• pp.15-43
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• 2007

본 연구의 목적은 해외지식재산권 침해 현황을 분석하고 그 대응방안을 제시하는데 있다. $1990{\sim}2005$년 동안 출원된 특허를 대상으로 2005년까지 발생한 권리분쟁은 모두 3,508회 발생하였으며, 이 중 무효심판(전부 무효 포함)이 1,903회로 가장 많은 것으로 나타났다. 소극적 권리범위 확인 심판은 1,001회 발생하여 발생된 분쟁의 28.5%를 차지하고 있으며, 특허권자가 권리를 침해받은 경우에 제기하는 적극적 권리범위 확인심판은 366회 발생하였다. 일본은 권리분쟁이 모두 275회 발생하여 다른 국가의 특허권자에 비해 분쟁횟수가 가장 높고, 그 중 무효심판이 107회로 38.9% 정정심판이 두 번째로 많은 83회 발생하여 30.2%를 차지하고 있다. 미국은 일본에 이어 두 번째로 분쟁횟수가 많으며, 무효심판이 66회로 무려 64.7%에 달하며, 정정심판은 21회 발생하여, 20.6%를 차지하고 있다. 해외지식재산권 침해 대응방안은 다음과 같다. 첫째, 정부의 대응방향이다. 해외지식재산권보호센터 기능의 강화, 특허권 침해물품의 국경조치 강화, 국제특허분쟁연구회 활동 강화, 국제특허분쟁 전문가의 양성, 특허소송 관할법원의 집중과 심판제도의 마련, 사회적 자본으로서 신뢰 구축 등을 수행하여야 한다. 둘째, 기업의 대응방향이다. 지식재산중시 경영(No Patent No Future), 출원 및 분쟁대응의 전문화, 특허풀(Patent Pool) 형성 및 표준화에 적극 참여, 기술이전 및 라이센스 계약 관리의 전문화 등을 기하여야 한다.

• 한국중재학회지:중재연구
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• 제34권1호
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• pp.51-74
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• 2024

Korea continues to invest in the IT industry and is currently regarded as one of the five major powerhouses in the field of intellectual property. However, it is evaluated that this status is only limited, and the level of intellectual property protection and dispute resolution does not reach a level commensurate with the status of one of the five major intellectual property powers. To address these problems, the Korean government has enacted the Arbitration Industry Promotion Act in 2017, which aims to strengthen national competitiveness by fostering the arbitration system as an industry and provide systematic support so that the arbitration industry can become a future growth engine. In addition, in accordance with Article 3 of the 「Arbitration Industry Promotion Act」, the Minister of Justice must establish "the Basic Plan for Arbitration Industry Promotion" every 5 years. Great efforts must be put into establishing an Online Dispute Resolution (ODR) system at the KCAB for five years from 2024 to 2028, the Second Basic Plan for the Promotion of the Arbitration Industry period. Under these circumstances, this study presents implications and improvement measures for the development of the intellectual property-related arbitration system to protect Korea's intellectual property rights and contribute to more active intellectual property creation. In particular, this study proposes a plan to build an one-stop digital platform for KCAB to implement an efficient ODR system.

• 한국중재학회지:중재연구
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• 제29권3호
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• pp.75-97
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• 2019

The growing importance of biological resources as sovereign rights to healthcare, energy, and food has sparked international discussions on Genetic Resources (GRs) and Traditional Knowledge (TK). As the bio-industry continues to grow, research and development utilizing patented biological resources are advocated. Currently, World Intellectual Property Organization (WIPO) is actively discussing GRs and TK, and an effective response to national interest has been sought. Of late, there have been growing disputes over issues like ownership, control, and access and benefit-sharing between indigenous peoples and users of GRs and TK resources. Resolution of disputes concerning GRs and TK are thus becoming critical not only to stakeholders such as the indigenous peoples and corporations, but also to third-party users. Due to the weakness of the current IP and court system however, such disputes are not addressed adequately. This paper will address the use of Alternative Dispute Resolution (ADR), which is an out-of-court dispute resolution system, on conflicting issues regarding GRs and TK. It will consider the WIPO as a forum for ADR and ADR for GRs and TK disputes and it will seek both parties in the dispute to benefit from the use of the ADR process.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.71-100
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• 2007

To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.547-584
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• 2004

Information technology(IT) is changing rapidly based on growth of internet and computer businesses. Therefore, computer programs and softwares are distributed to computer users promptly for their productivity increase and efficient work. So, in the distribution, the softwares will be copied or released through network or other methods which are not authorized by the program owners. In that case, copyright dispute is incurred and various issues are come out due to infringement of the software copyright. Thus, the purpose of this study is to research infringement cases of the software copyright and how to settle the dispute which is related with software programs. To achieve the purpose of this study, this research consisted of 5 chapters. At chapter 1 introduction, it mentioned necessity of this study, purpose and how to research this study, and at chapter 2 dispute factors indicated and summarized for technical resolution. At chapter 3, infringement cases of software copyright analyzed and studied upon intellectual property(IP) related laws. And methods of dispute settlement discussed and suggested to chapter 4 for copyright and intellectual property protection. Also, it emphasized importance of arbitration to resolve the issues timely and avoid time and economical consumption. Of course, arbitration law has to be matched with the trend of technology development for effective settlement. At chapter 5 conclusion, it summarized this research and suggested further research for empirical test of economic value of the software copyright upon the aspect of business, law, and engineering. In this study, the results are 1) IP related laws have to be enacted or revised to meet technical changes for the protection of software copyright on time. The enactment or the revision of law takes a long time, therefore, to deal the dispute effectively, 2) arbitration law has to be utilized efficiently in order to resolve issues and settle the dispute promptly. It is suggested the dispute settlement through arbitration to save time and economic matters for legislation, and to harmony with the technology trends. 3) Recognition of software copyright is to be improved by users and enterprises for development of software related industries and intellectual property protection. In conclusion, the protection of software copyright is important than any other things in the field of IT because of the development of industry and intellectual property related laws. The development is for areas of business, law and engineering, so research and practices are to be combined with the areas so that it could resolve the dispute settlement and IP protection effectively.