대학원생 발명의 대학의 직무발명 여부 및 대학의 권리로 포섭하는 방안

This paper finds that a graduate student is usually not an employee of the university and therefore a graduate student invention shall not be considered as a university employee invention based on (1) lack of employee relationship, (2) analysis of relevant act, such as the High Education Act, (3) other several papers. However, if a graduate student participates in a research project, it is necessary for the university to receive an invention created from the project. Regarding the project, employee relationship can be recognized and further it is highly likely for a graduate student invention to be admitted as an employee invention. However, to make relevant right relationship clear, a university must mandate every graduate student who participates in a research project to submit an agreement where he admits that he will transfer relevant right of an invention created from the project. On the other hand, it is necessary for a university to receive an invention created by a graduate student who substantially used university resources. A university patent policy must make such transfer clear. If such agreement or patent policy is too much advantageous to the university, it may not be supported by a court.