직무발명 보상금 산정기준에 대한 연구

Abstract

According to Article 15, Paragraph 1, of the Invention Promotion Act of Korea, the employee shall have a right to receive a reasonable amount of remuneration for the invention when he/she assigned the right to obtain a patent/the patent right to the employer, or when he/she granted an exclusive license to the employer in accordance with the contract, employment policy, or other agreement. The amount of such remuneration shall be decided by considering both profits gained by the employer from the invention and the extent of contribution by the employer to the invention, (Article 15, Paragraph 3). Here, we have problems to determine a reasonable amount of remuneration. There is no clear definition as to “profit” and “contribution” by law. This makes it difficult to determine reasonable remuneration. Solving the difficulty of determining reasonable remuneration, the Act stipulates the contract or employment policy prescribing the employee's invention should be reasonable. Even the reform of the Act, inventors are not satisfied with the current situation of a “reasonable amount” of remuneration. They expect more than they now receive. The number of law suits concerning employees' invention is increasing and the amount of remuneration they claim is increasing. Inventors have become very conscious of patent rights. Particularly “headline cases”, such as the Olympus case and the litigation filed by Professor Nakamura, have emboldened some employee/inventors, who are now more likely to assert that their contributions should be more highly remunerated. While a few employees are strongly influenced by this trend, most of the employees consider that patent activity is only a part of their scope of duties. These employees tend to value other business activities as more important than patent rights. First, we should reconsider the meaning of employee invention's system. The System is designed for balancing the profits of employer and employee and raising the incentive for invent. In that meaning, claim for remuneration of employee is mandatory. Employee invention's system was set forth for the balances of employer's and employee's benefit. And "the reasonable amount of remuneration" is determined in that point. And claims for remuneration of employee should consider the circumstances of employer and employee. The employers has to face to various risks in his business and has to bear the liability and risk of loss arisen by his business, but the employee does not have to face to the risk of loss and does not have to bear any liability arisen by the employer's business. As Tokyo High Court decided the employee's contribution rate is 5 percent, 5 percent is the figure that is most frequently used in Japanese practices as an employee's contribution to an invention. In these way, we should balancing the profits of employer and employee and raise the incentive for invent, the reasonable amount of remuneration should be determined. If do not that, the purpose of employee' invention system will be frustrated.