Need for New Criteria of an Injunction in a Patent Infringement (특허침해금지청구에 대한 새로운 판단기준의 필요성)
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- Journal of Legislation Research
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- no.44
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- pp.571-610
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- 2013
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The current patent system is more often used for defensive purposes to exclude others' use or as a means to hold unfair strong positions in negotiations rather than for the original purpose as the dissemination and active use of useful technology. An injunction together with a damage is an important remedy for patent infringements. However, unlike a claim for damages, injunctions do not require the subjective requirement of intent and negligence or the occurrence of loss. If the validity of the patent and the fact of infringement are confirmed, automatically injunctions are issued without consideration of other circumstances. So a patent holder would exclude others' use and have a powerful position in negotiations because of injunctions for patent infringements. Therefore, those injunctions for patent infringements should be flexibly restricted according to cases under the premise to ensure fair compensation for the patent owner, rather than absolutely admitting injunctions for patent infringements like now. If then, it would serve the use of a useful technology and industrial development as the purpose of the patent system. First of all, judgments for preliminary injunctions should be strict and by deliberate decision on the merits permanent injunctions should be determined. In addition, it is needed that court's discretion possible to considerate 'the need for an injunction'. When the courts judge 'the need for an injunction', 'whether a patent holder has implemented a patent invention, the possibility of monetary compensation and the ability of the infringer for damages, a patent holder's intent to license and whether an injunction has been used as a weapon of negotiation, the proportion of patent technology in the entire products, the characteristics of patent technology and the possibility of patent invalidity, the competitive relationship for market share, the public interests and gains and losses between the parties and so on' should be considered. After these judgements, if 'the need for an injunction' is not approved, a patent owner would be protected by post-monetary compensation. However, because damages are related to illegal conducts in the past, in the case that an injunction is restrained, measures to ensure the legal implementation in the future are needed. It is primarily desirable that reasonable royalty is estimated throughout private negotiations between parties, but if agreement between the parties does not occur, patent owner should be able to claim the royalty for future.
Taking the concept of 'Invention of Tradition' by Hobsbawm, this paper examines the change of perspectives on the past and the attitudes toward connecting the past and the contemporary in the 19th century restoration of religious buildings in England. The Anglican society in the early 19th century argued that the catholic theology and rituals should be revived in their practice, which has formed the Oxford Movement. Such aspiration has stimulated to the society to execute its religious practice in a proper space, which has resulted in the Cambridge Camden Society in the middle of the century. Their publications on church buildings and arrangement had much affected to the restoration of many churches to rip off the previous Georgian furnitures and features of the fabric into Gothic, the style of middle age. The perspective on the past for anti-restoration movement in the late 19th century has moved into the one to respect all historical layers of previous spirit imprinted in the church buildings. Inspired by Ruskin and formulated by Morris, SPAB's Manifesto has reflected that the spirit of the first builder can not be reproduced or copied by the contemporaries, and therefore a daily maintenance is the best practice to extend the life of spirit rather than restoration. In addition the material remains is no longer belong to the religious entity but should be regarded as national heritage. By examining the change of perspectives on the past between the early and middle of 19th century and the late 19th century, this paper has argued that the various factors such as social, economic, political, art and commercial factors should be examined together in the understanding of conservation history.
The purpose of this article is to critically reflect on the 2022 national curriculum on religions. The perspective of this reflection is that since the religious curriculum is meant to be a national curriculum, it should be applicable to all high school students, be shareable, and function as a place for meta-reflection regarding the proper use of the category of religion. For this purpose, I reviewed the form and content of the 2022 curriculum on religions in Section 2. The form of the 2022 curriculum on religions looks similar to the previously utilized curriculum. However, the main change is that the subject of religions was arbitrarily placed into the category of 'subjects for choosing a career.' And the 2022 curriculum on religions has two characteristics in terms of content: the orientation of 'making religious people (spiritual formation)' and the reemergence of the concept of 'pseudo-religion.' In Section 3, I delved into the orientation of 'making religious people through religious reflection' among the characteristics of the 2022 curriculum on religions. In this process, I discovered that the concept of 'reflection as a metacognitive technology,' which was the core of the prior curriculum and school education, was transformed into the concept of 'religious reflection,' and the concepts of spirituality and religiosity were also added. In Section 4, I delved into the dichotomy of 'religion and pseudo-religion.' 'Pseudo-religion' is a new focus in the 2022 curriculum on religions. In this process, I revealed that the concept of 'pseudo-religion' is a combination of an outdated administrative term of the Japanese Government-General of Korea during Japan's occupation of Korea, and as such, the term is inherently value-laden and harmful. I also revealed that determining 'pseudo-religion' in school education regenerates the colonial Japanese Government-General's biased attitudes toward Korean religions and forces teachers to 'invent' (detect or personally appraise) modern day pseudo-religions through arbitrary judgements. The 'curriculum to emphasize religious reflection and detect pseudo-religions in order to create religious people' can distort the subject of religion in the national curriculum as into a 'subject for religion (promotion or degradation).' If this distortion continues, the appropriateness of curriculum on religions existing within the national curriculum will eventually become a subject of debate.
Although there have been cases of evaluating the value of specific companies or projects which have centralized on developed countries in North America and Europe from the early 2000s, the system and methodology for estimating the economic value of individual technologies or patents has been activated on and on. Of course, there exist several online systems that qualitatively evaluate the technology's grade or the patent rating of the technology to be evaluated, as in 'KTRS' of the KIBO and 'SMART 3.1' of the Korea Invention Promotion Association. However, a web-based technology valuation system, referred to as 'STAR-Value system' that calculates the quantitative values of the subject technology for various purposes such as business feasibility analysis, investment attraction, tax/litigation, etc., has been officially opened and recently spreading. In this study, we introduce the type of methodology and evaluation model, reference information supporting these theories, and how database associated are utilized, focusing various modules and frameworks embedded in STAR-Value system. In particular, there are six valuation methods, including the discounted cash flow method (DCF), which is a representative one based on the income approach that anticipates future economic income to be valued at present, and the relief-from-royalty method, which calculates the present value of royalties' where we consider the contribution of the subject technology towards the business value created as the royalty rate. We look at how models and related support information (technology life, corporate (business) financial information, discount rate, industrial technology factors, etc.) can be used and linked in a intelligent manner. Based on the classification of information such as International Patent Classification (IPC) or Korea Standard Industry Classification (KSIC) for technology to be evaluated, the STAR-Value system automatically returns meta data such as technology cycle time (TCT), sales growth rate and profitability data of similar company or industry sector, weighted average cost of capital (WACC), indices of industrial technology factors, etc., and apply adjustment factors to them, so that the result of technology value calculation has high reliability and objectivity. Furthermore, if the information on the potential market size of the target technology and the market share of the commercialization subject refers to data-driven information, or if the estimated value range of similar technologies by industry sector is provided from the evaluation cases which are already completed and accumulated in database, the STAR-Value is anticipated that it will enable to present highly accurate value range in real time by intelligently linking various support modules. Including the explanation of the various valuation models and relevant primary variables as presented in this paper, the STAR-Value system intends to utilize more systematically and in a data-driven way by supporting the optimal model selection guideline module, intelligent technology value range reasoning module, and similar company selection based market share prediction module, etc. In addition, the research on the development and intelligence of the web-based STAR-Value system is significant in that it widely spread the web-based system that can be used in the validation and application to practices of the theoretical feasibility of the technology valuation field, and it is expected that it could be utilized in various fields of technology commercialization.
1. Introduction Today Internet is recognized as an important way for the transaction of products and services. According to the data surveyed by the National Statistical Office, the on-line transaction in 2007 for a year, 15.7656 trillion, shows a 17.1%(2.3060 trillion won) increase over last year, of these, the amount of B2C has been increased 12.0%(10.2258 trillion won). Like this, because the entry barrier of on-line market of Korea is low, many retailers could easily enter into the market. So the bigger its scale is, but on the other hand, the tougher its competition is. Particularly due to the Internet and innovation of IT, the existing market has been changed into the perfect competitive market(Srinivasan, Rolph & Kishore, 2002). In the early years of on-line business, they think that the main reason for success is a moderate price, they are awakened to its importance of on-line service quality with tough competition. If it's not sure whether customers can be provided with what they want, they can use the Web sites, perhaps they can trust their products that had been already bought or not, they have a doubt its viability(Parasuraman, Zeithaml & Malhotra, 2005). Customers can directly reserve and issue their air tickets irrespective of place and time at the Web sites of travel agencies or airlines, but its empirical studies about these Web sites for reserving and issuing air tickets are insufficient. Therefore this study goes on for following specific objects. First object is to measure service quality and service recovery of Web sites for reserving and issuing air tickets. Second is to look into whether above on-line service quality and on-line service recovery have an impact on overall service quality. Third is to seek for the relation with overall service quality and customer satisfaction, then this customer satisfaction and loyalty intention. 2. Theoretical Background 2.1 On-line Service Quality Barnes & Vidgen(2000; 2001a; 2001b; 2002) had invented the tool to measure Web sites' quality four times(called WebQual). The WebQual 1.0, Step one invented a measuring item for information quality based on QFD, and this had been verified by students of UK business school. The Web Qual 2.0, Step two invented for interaction quality, and had been judged by customers of on-line bookshop. The WebQual 3.0, Step three invented by consolidating the WebQual 1.0 for information quality and the WebQual2.0 for interactionquality. It includes 3-quality-dimension, information quality, interaction quality, site design, and had been assessed and confirmed by auction sites(e-bay, Amazon, QXL). Furtheron, through the former empirical studies, the authors changed sites quality into usability by judging that usability is a concept how customers interact with or perceive Web sites and It is used widely for accessing Web sites. By this process, WebQual 4.0 was invented, and is consist of 3-quality-dimension; information quality, interaction quality, usability, 22 items. However, because WebQual 4.0 is focusing on technical part, it's usable at the Website's design part, on the other hand, it's not usable at the Web site's pleasant experience part. Parasuraman, Zeithaml & Malhorta(2002; 2005) had invented the measure for measuring on-line service quality in 2002 and 2005. The study in 2002 divided on-line service quality into 5 dimensions. But these were not well-organized, so there needed to be studied again totally. So Parasuraman, Zeithaml & Malhorta(2005) re-worked out the study about on-line service quality measure base on 2002's study and invented E-S-QUAL. After they invented preliminary measure for on-line service quality, they made up a question for customers who had purchased at amazon.com and walmart.com and reassessed this measure. And they perfected an invention of E-S-QUAL consists of 4 dimensions, 22 items of efficiency, system availability, fulfillment, privacy. Efficiency measures assess to sites and usability and others, system availability measures accurate technical function of sites and others, fulfillment measures promptness of delivering products and sufficient goods and others and privacy measures the degree of protection of data about their customers and so on. 2.2 Service Recovery Service industries tend to minimize the losses by coping with service failure promptly. This responses of service providers to service failure mean service recovery(Kelly & Davis, 1994). Bitner(1990) went on his study from customers' view about service providers' behavior for customers to recognize their satisfaction/dissatisfaction at service point. According to them, to manage service failure successfully, exact recognition of service problem, an apology, sufficient description about service failure and some tangible compensation are important. Parasuraman, Zeithaml & Malhorta(2005) approached the service recovery from how to measure, rather than how to manage, and moved to on-line market not to off-line, then invented E-RecS-QUAL which is a measuring tool about on-line service recovery. 2.3 Customer Satisfaction The definition of customer satisfaction can be divided into two points of view. First, they approached customer satisfaction from outcome of comsumer. Howard & Sheth(1969) defined satisfaction as 'a cognitive condition feeling being rewarded properly or improperly for their sacrifice.' and Westbrook & Reilly(1983) also defined customer satisfaction/dissatisfaction as 'a psychological reaction to the behavior pattern of shopping and purchasing, the display condition of retail store, outcome of purchased goods and service as well as whole market.' Second, they approached customer satisfaction from process. Engel & Blackwell(1982) defined satisfaction as 'an assessment of a consistency in chosen alternative proposal and their belief they had with them.' Tse & Wilton(1988) defined customer satisfaction as 'a customers' reaction to discordance between advance expectation and ex post facto outcome.' That is, this point of view that customer satisfaction is process is the important factor that comparing and assessing process what they expect and outcome of consumer. Unlike outcome-oriented approach, process-oriented approach has many advantages. As process-oriented approach deals with customers' whole expenditure experience, it checks up main process by measuring one by one each factor which is essential role at each step. And this approach enables us to check perceptual/psychological process formed customer satisfaction. Because of these advantages, now many studies are adopting this process-oriented approach(Yi, 1995). 2.4 Loyalty Intention Loyalty has been studied by dividing into behavioral approaches, attitudinal approaches and complex approaches(Dekimpe et al., 1997). In the early years of study, they defined loyalty focusing on behavioral concept, behavioral approaches regard customer loyalty as "a tendency to purchase periodically within a certain period of time at specific retail store." But the loyalty of behavioral approaches focuses on only outcome of customer behavior, so there are someone to point the limits that customers' decision-making situation or process were neglected(Enis & Paul, 1970; Raj, 1982; Lee, 2002). So the attitudinal approaches were suggested. The attitudinal approaches consider loyalty contains all the cognitive, emotional, voluntary factors(Oliver, 1997), define the customer loyalty as "friendly behaviors for specific retail stores." However these attitudinal approaches can explain that how the customer loyalty form and change, but cannot say positively whether it is moved to real purchasing in the future or not. This is a kind of shortcoming(Oh, 1995). 3. Research Design 3.1 Research Model Based on the objects of this study, the research model derived is shows, Step 1 and Step 2 are significant, and mediation variable has a significant effect on dependent variables and so does independent variables at Step 3, too. And there needs to prove the partial mediation effect, independent variable's estimate ability at Step 3(Standardized coefficient
shows, Step 1 and Step 2 are significant, and mediation variable has a significant effect on dependent variables and so does independent variables at Step 3, too. And there needs to prove the partial mediation effect, independent variable's estimate ability at Step 3(Standardized coefficient
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