직무발명의 특허무효사유가 정당한 보상금의 산정에 미치는 영향

Abstract

An employee of a company is entitled to be fairly compensated for the invention which has been transferred to his employer. When the employee claim for fair compensation, however, the employer sometimes argue total exemption or at least some reduction of the compensation alleging invalidity of the patented invention. Whether invalidity of the invention subject to the compensation by itself leads to the exemption of the compensation or only gives rise to some reduction of the compensation, is yet to be clarified by the case law or legal theory. The answer to the question can be found by tracing back to the purpose and legal characteristics of the compulsory provisions to enforce the fair compensation. Comprehensive consideration of following factors leads to the conclusion that invalidity of the patent does not exempt the employer from the obligation: firstly, legislative histories of the Patent Act and the Invention Promotion Act shows the amendments have been made with tendency to promote employee’s interest though balancing the employer’s and the employee’s interests, secondly, the rational to entitle the employee to be fairly compensated is not only to reward him for his invention but also to allocate some profits earned by the employer to the employee to further motivate him for more following inventions achieving ultimate purpose of the Patent Act and the Invention Promotion Act to develop industry, thirdly, the right to the compensation is not limited only to the transfer of valid patent, rather the right is clearly afforded by even the transfer of right to patent, and finally, exempting the employer earning profits from the obligation would not be reasonable, either. Once the employer has even argued validity of the patent during the application and following examination and registering procedure, the employer to be exempted from the obligation might be estopped from the subsequent arguing the invalidity of the invention.