[2] In a case where Gap sought payment of compensation for employee's invention against Eul corporation who succeeded to his/her right to employee's invention, the case holding that Eul company is not obligated to pay compensation for employee's invention since Eul company's invention was already publicly known at the time of application for employee's invention and it appears that the third party in competition could have easily known such circumstances

[2] In a case where Gap sought payment of compensation for employee's invention against Eul corporation who succeeded to his/her right to employee's invention, the case holding that Eul company is not obligated to pay compensation for employee's invention since Eul company's invention was already publicly known at the time of application for employee's invention and it appears that the third party in competition could have easily known such circumstances, it cannot be readily concluded that Eul company's implementation of employee's invention would have obtained exclusive and exclusive profits exceeding the non-exclusive license without compensation, on the grounds that Eul company's implementation of employee's invention did not

1. The plaintiff's ground of appeal No. 1

Article 40(2) of the former Patent Act (amended by Act No. 7869, Mar. 3, 2006) provides that when an employer succeeds to an employee invention from an employee, the determination of a reasonable amount of compensation to be paid to the employee shall take into account the amount of profit that the employer would obtain by the invention and the degree of contribution of the employer and the employee to the completion of the invention. According to Article 39(1) of the same Act, the employer has a non-exclusive license on the patent right even if the employee does not succeed to the employee invention. Thus, the term “profit that the employer would obtain” refers to the profit that the employer gains by acquiring the status that the employee invention would be exclusively and independently conducted beyond a non-exclusive license (see Supreme Court Decision 2009Da75178, Jul. 28, 2011).

According to the reasoning of the judgment below and the records, it seems that the Defendant: (a) prior to the filing of the application for the Pacific invention as indicated in the judgment of the court below, it was possible for the Defendant to freely execute the invention, and a third party in competition to easily find the fact that it was possible for the Defendant to have concluded a contract for processing with the limited chemical industry company (hereinafter “chemical”) to obtain an exclusive license for the invention from the limited chemical company, etc., and then easily obtained an exclusive license for the invention from the non-exclusive license for the invention as raw materials, and then, (b) made an invention from the non-exclusive license for the production method of the diversium, etc., and (c) made it possible for the Defendant to obtain an exclusive license for the production method of the diversium as raw materials; and (d) made an invention from the non-exclusive license for the diversium in light of the aforementioned legal principles as to the diversium, etc., and thus, made it easier for the Defendant to obtain an exclusive license for the divers and alcohol.

In this part of the judgment below's reasoning, it is inappropriate for the defendant to consider that he did not implement the Pacific invention in addition to the import of Podrythium salt from Ghana. However, the decision that the defendant did not have an obligation to pay compensation in relation to the Podryal invention to the plaintiff is justifiable. Accordingly, there is no error in the misapprehension of legal principles or the selection of evidence by deviating from the limit of the principle of free evaluation of evidence as to the payment of compensation in relation to the Po

2. Plaintiff’s ground of appeal No. 2 and Defendant’s ground of appeal

According to the reasoning of the judgment below, the court below determined the amount of compensation for the inventor's invention as 15% in consideration of the following circumstances: ① the implementation by the defendant was made jointly by the plaintiff and the non-party; ② the portion due to the exclusive effect of the agedifin invention as indicated in the judgment of the court below was applied to the aggregate of the insurance claim amount; ② the Defendant calculated the profit amount derived from the agedifin invention by applying the royalty rate of 5% to the aggregate of the insurance claim amount; ② the Defendant calculated the profit amount derived from the agedifin invention by March 31, 2008; and then the amount of compensation for the invention should be paid by the plaintiff in relation to the agedifin invention, taking into account the job contents, the circumstances in which the invention was made, and the process in which the invention was made, and the degree of effort, etc.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles by exceeding the bounds of the principle of free evaluation of evidence as to the criteria for calculating employee invention compensation as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)