발명진흥법 제15조 제2항에 따른 직무발명 보상에관한 검토

Abstract

This study shall point out some of the drawbacks on the current Employee’s Invention Compensation System(EICS). Firstly, for the earlier establishment of EICS, German legislation(Gesetz uber arbeitnehmererfindungen, Article 12, Feststellung oder Festsetzung der Vergutung) shall be a good example to be referred. While reflected in some precedent in Korean court of Law, the way of estimating the employee’s contribution to a certain invention after it completion in defining the compensation rate shall be in need of revision with Japanese Patent Law, 35.5. Meantime, the legislative action for clarifing whether-or-not the newly-establishing compensation system applied to the clause 2 retroactively shall also be reviewed. For the easier walk-through and guideline provided in clause 2, public and trade bodies shall collect extensive opinions from employer’s communities and occupational/industrial Unions in order to make sure that as many companies can benefit from this system. In addition, to raise the predictability in the compensation amount, industrial/occupational standard hypothetical royalty rate, standard contribution(compensation rate), standard contribution rate in collective invention shall be reasonably investigated in order to be recognized in the court of law. Lastly, calculating the monopoly profits by employee’s invention is a matter of interpretation. Especially in a product that is made from various patent technologies, an approach that take the maximum license fee available and weighted value into account, correction factoring approach, monopoly profits valuation in exclusive license shall be encouraged in estimating compensation in court of Law through extensive and practical discussion.