[실용신안등록청구권확인등][집25(1)민,80;공1977.3.15.(556),9924]
Whether the act of transferring a utility model after the invention is made by an employee under Article 17 (3) of the Patent Act is valid.
The purpose of Article 17 (3) of the Patent Act is to stipulate that, with respect to an invention related to an employee's work other than an employee's invention, the right to obtain a patent prior to the invention, or a patent right, etc. to be acquired in the future, even if there are two contracts or employment regulations to transfer (transfer) the patent right, etc. to the employer prior to the invention, such contract or employment regulations shall be null and void, thereby protecting the interests of the employee weakly admitted to the employer and promoting the invention at the same time, and it shall not be prohibited from transferring the invention after the employee's invention. Therefore, in this case where the provisions of Article 17 of the Patent Act are applied mutatis mutandis to the utility model, the transfer of the invention made after the employee's transfer shall be valid.
Article 17(3) of the Patent Act; Article 29 of the Utility Model Act
Samd Industries Co., Ltd.
Defendant (Attorney Cho Jae-chul, Counsel for the defendant-appellant)
Daegu High Court Decision 76Na590 delivered on November 12, 1976
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The defendant's attorney's grounds of appeal are examined.
The purpose of Article 17 (3) of the Patent Act is to stipulate that, with respect to an invention related to an employee's work other than an employee's invention, the right to obtain a patent prior to the invention, or a patent right, etc. to be acquired in the future, even if there are two contracts or employment regulations that transfer the patent right, etc. to the employer prior to the invention, such contracts or employment regulations shall be null and void, and at the same time, encourage and encourage the employer to protect the interests of the employee in weak position, and they shall not be prohibited from transferring the invention after the employee's invention. Accordingly, the court below's decision that the transfer of the invention made after the defendant made the invention in utility model pursuant to Article 17 of the Patent Act shall be valid in this case where the provisions of the Patent Act Article 29 of the Utility Model Act shall apply mutatis mutandis to the utility model, is legitimate, and there is no error of law by misunderstanding the legal principles of the Utility Model Act, such as the theory of lawsuit, and the transfer without compensation is null and void. Therefore, all arguments are without merit.
Justices Yang Byung-ho (Presiding Judge)