대학 및 창업기업의 종업원으로서 이중적 지위를 갖는 창업교원에 의해 창출된 개량발명에 대한 권리 귀속 명확화를 위한 지침에 관한 연구

Abstract

The role of university is gradually expanding. That is, while education and academic research have been emphasized as important role in the past, it is being sought that legal tools to promote utilization of intellectual property rights created from research at universities. As such a tool, spin-off of public research institutes including universities and government-funded institutes has been encouraged and furthermore, establishment of faculty spin-off is been actively encouraged. On the other hand, in many cases, faculties who are professors at universities establish spin-off company by obtaining approval by the university for dual employment. Thus, it is necessary to manage legal issues for improvement invention created by consecutive research by the dual-employed faculty. In this regard, first of all, this article has examined legal issues related to improvement invention and deduced implications from the examination. After that, this article asserts that a legal theory of employee invention articulated in the Invention Promotion Act should be applied by considering a natural person working employed by two employers as different two employees. According to the inventorism articulated by Korea Patent Act, patentee is entitled to obtain patent right. Since, based on that right, both University and faculty spin-off cannot be prevented from obtaining the patent right in accordance with succession regulation on employee invention, it would be in line with the legal theory of employee invention. Furthermore, this article has suggested a guideline on the attribution of right to improvement inventions created by dual-employed faculty. The university would be able to solve problem of the attribution of the right to the improvement invention by securing a share of the patent right for that invention. Specifically, this article asserts that the determination of the share should be made under agreement between the university and the faculty spin-off, and the share should be calculated by collectively considering contribution of the inventor’s effort and the non-creative contribution of the two employers. Since such a guideline do not violate the legal theory of employee invention and do not constitute unfair trade practices, it may be a starting point for negotiation between universities and faculty spin-off when the universities approves for a faculty to have dual employment.