종업원의 특허를 받을 수 있는 권리의 묵시적 이전에 관한 소고

A Study on Implied transfer of Right to obtain a patent of Employe -Focusing on Supreme Court Decision 2010Da26769 Decided November 11, 2010 and Supreme Court Decision 2011Da57548 Decided May 24, 2013-

The Supreme Court ruled that an employee, who had created an invention based on facilities of employer, etc. and who had transferred the invention to other company without explicit contract, was entitled to be paid fair compensation which was calculated by Article 40 of the former Patent Act, assuming the invention as an employee invention notwithstanding the nature of free invention as it is. There is, however, a major problem with the decision of the substance of the invention. The invention was not free invention but employee invention by reason of the relation between employee and employer. Consequently, The Supreme Court should dismiss the Plaintiff's claim.