퇴직 종업원이 한 발명의 분쟁해결방안에 관한 소고 - 한ㆍ중 비교를 중심으로 -

A study on the disputes relating to the invention made after retirement of an employee

When an employee who works for a certain business makes an invention that has relevance to his current or former duties in the business and such an invention belongs to the business scope of his employer, the invention will be an object in ‘employ invention’. And the employer could be allowed to own a right for the employ invention or to enjoy non-exclusive license for the invention under certain conditions. However, it is very difficult to make a judgment as to when the employee has perfected his invention in question because an invention is essentially the product of one’s mental activities. Consequently, there is a huge possibility of conflicts between an employer and an employee regarding ownership of an invention that is published or applied for a patent immediately after retirement of the employee. In China, an invention that is made after a year sine the retirement of an employee is recognized as free invention of the employee irrespective of the relevance to his current or former duties in the business. Those chinese regime for ‘employ invention’ in the patent law is to maintain a reciprocal benefit and equilibrium between an employer and an employee. Therefore, this present paper compares the regime for ‘employ invention’ in Korea and China and reviews cases of dispute relating to the invention made after retirement of an employee. These findings might provide an appropriate direction to solve conflicts between an employer and an employee regarding ownership of an invention that is made after retirement of the employee.