• Title/Summary/Keyword: injunction

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Strategic implication of an injunctive relief in global IP lawsuits: based on the Samsung vs. Apple litigation in the US (창조경제시대 글로벌 지식재산소송의 기업 전략적 함의에 관한 소고: 삼성-애플 미국 소송의 침해금지명령을 중심으로)

  • Choi, Jisun
    • Journal of Technology Innovation
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    • v.21 no.2
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    • pp.319-354
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    • 2013
  • As creative economy gets attention, the capabilities of transforming creative ideas into intellectual property and utilizing it commercially have become important than ever before. Korea is lack of the capabilities of utilizing intellectual property compared to those of accumulating it. This paper focuses on the strategic implication of an injunctive relief, which has a far-reaching impact on firms' business strategies as well as national industrial competitiveness because losers in lawsuits are expelled from markets. It analyzes the Samsung-Apple global IP lawsuits about smartphones and tablet PCs, which have expanded into 9 countries since 2011 when the Apple filed the IP lawsuit against Samsung in the US for the first time. In particular, this paper analyzes the requirements to get the permanent injunctive relief in the lawsuits of intellectual property from reviewing the ruling in the court of the US in 2012 and draws some implications from the perspective of business/industrial strategies. This paper has some limitations in that the lawsuit are still ongoing and it is the first attempt to find out the clue that connects legal and strategic issues in the rulings. Regardless of the limitations, however, this paper expects to contribute to raising the issues as to the importance of harmonizing the capabilities of managing technology with law, in order to survive under the era of creative economy.

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The Risks of Transport Documents under L/C Transaction (신용장거래에서 운송서류의 위험요인에 관한 연구)

  • Park, See-Woon
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.45
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    • pp.85-109
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    • 2010
  • L/C provides the exporter and the importer with safe assurance in the exchange of goods for payment in international trade. It involves a number of parties. Although the parties may have confidence in their client, bad faith or ignorance of international banking practice by any of these parties could cause the failure of transaction, which makes international trade a risky business. Most of the risks are found in transport document, which can cause disputes. There are many factors in the risk of transport documents under L/C transaction. One most common risk factor for the beneficiary in all transport documents is even if there is no discrepancy in document, the issuing bank or the applicant refuses to pay or delay payment insisting there is a discrepancy. In some very rare cases, the beneficiary may not get paid due to unfair injunction of the local court of the applicant. For the applicant, most common risk factors are fake bill and fraud. Risks classified according to the sorts of transport documents are as follows. 1. In B/L, payment can be refused because it is regarded as charter party B/L, although there is no real charter party contract. And the applicant can bear the potential risk of the loss or deterioration of cargo through transhipment of the cargo loaded on board in container if transhipment is prohibited without excluding of UCP 600 article 20 (c). 2. In charter party B/L, the applicant may take delivery without paying when charter party B/L is signed by charterer, which can result in a big loss for the beneficiary and the negotiating bank. And risks may arise when cargo is seized because the charterer does not pay the hire. The applicant and the issuing bank are also vulnerable to a risk - Against whom should they file a suit when cargo gets damaged during transportation? 3. In multimodal transport document, which is subject to a conflict because there is a big difference in viewpoints between transport industry and banks, conflicts may also arise when L/C requires ocean B/L and accepts multimodal transport document at the same time, but does not specify the details. 4. In air waybill, where the consignee is not the issuing bank but the applicant, risks may take place to the beneficiary when the applicant takes delivery but refuses to pay asserting minor discrepancies in document. The applicant may also bear the risk when cargo may not be loaded because air waybill is a received bill. Another risk may arise when although the applicant prohibits transhipment without excluding UCP 600 article 23 (c), the cargo may be transhipped, provided that the entire carriage is covered by one and the same air waybill.

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A Study on Improvements on Legal Structure on Security of National Research and Development Projects (과학기술 및 학술 연구보고서 서비스 제공을 위한 국가연구개발사업 관련 법령 입법론 -저작권법상 공공저작물의 자유이용 제도와 연계를 중심으로-)

  • Kang, Sun Joon;Won, Yoo Hyung;Choi, San;Kim, Jun Huck;Kim, Seul Ki
    • Proceedings of the Korea Technology Innovation Society Conference
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    • 2015.05a
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    • pp.545-570
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    • 2015
  • Korea is among the ten countries with the largest R&D budget and the highest R&D investment-to-GDP ratio, yet the subject of security and protection of R&D results remains relatively unexplored in the country. Countries have implemented in their legal systems measures to properly protect cutting-edge industrial technologies that would adversely affect national security and economy if leaked to other countries. While Korea has a generally stable legal framework as provided in the Regulation on the National R&D Program Management (the "Regulation") and the Act on Industrial Technology Protection, many difficulties follow in practice when determining details on security management and obligations and setting standards in carrying out national R&D projects. This paper proposes to modify and improve security level classification standards in the Regulation. The Regulation provides a dual security level decision-making system for R&D projects: the security level can be determined either by researcher or by the central agency in charge of the project. Unification of such a dual system can avoid unnecessary confusions. To prevent a leakage, it is crucial that research projects be carried out in compliance with their assigned security levels and standards and results be effectively managed. The paper examines from a practitioner's perspective relevant legal provisions on leakage of confidential R&D projects, infringement, injunction, punishment, attempt and conspiracy, dual liability, duty of report to the National Intelligence Service (the "NIS") of security management process and other security issues arising from national R&D projects, and manual drafting in case of a breach. The paper recommends to train security and technological experts such as industrial security experts to properly amend laws on security level classification standards and relevant technological contents. A quarterly policy development committee must also be set up by the NIS in cooperation with relevant organizations. The committee shall provide a project management manual that provides step-by-step guidance for organizations that carry out national R&D projects as a preventive measure against possible leakage. In the short term, the NIS National Industrial Security Center's duties should be expanded to incorporate national R&D projects' security. In the long term, a security task force must be set up to protect, support and manage the projects whose responsibilities should include research, policy development, PR and training of security-related issues. Through these means, a social consensus must be reached on the need for protecting national R&D projects. The most efficient way to implement these measures is to facilitate security training programs and meetings that provide opportunities for communication among industrial security experts and researchers. Furthermore, the Regulation's security provisions must be examined and improved.

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Dynamic Limit and Predatory Pricing Under Uncertainty (불확실성하(不確實性下)의 동태적(動態的) 진입제한(進入制限) 및 약탈가격(掠奪價格) 책정(策定))

  • Yoo, Yoon-ha
    • KDI Journal of Economic Policy
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    • v.13 no.1
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    • pp.151-166
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    • 1991
  • In this paper, a simple game-theoretic entry deterrence model is developed that integrates both limit pricing and predatory pricing. While there have been extensive studies which have dealt with predation and limit pricing separately, no study so far has analyzed these closely related practices in a unified framework. Treating each practice as if it were an independent phenomenon is, of course, an analytical necessity to abstract from complex realities. However, welfare analysis based on such a model may give misleading policy implications. By analyzing limit and predatory pricing within a single framework, this paper attempts to shed some light on the effects of interactions between these two frequently cited tactics of entry deterrence. Another distinctive feature of the paper is that limit and predatory pricing emerge, in equilibrium, as rational, profit maximizing strategies in the model. Until recently, the only conclusion from formal analyses of predatory pricing was that predation is unlikely to take place if every economic agent is assumed to be rational. This conclusion rests upon the argument that predation is costly; that is, it inflicts more losses upon the predator than upon the rival producer, and, therefore, is unlikely to succeed in driving out the rival, who understands that the price cutting, if it ever takes place, must be temporary. Recently several attempts have been made to overcome this modelling difficulty by Kreps and Wilson, Milgram and Roberts, Benoit, Fudenberg and Tirole, and Roberts. With the exception of Roberts, however, these studies, though successful in preserving the rationality of players, still share one serious weakness in that they resort to ad hoc, external constraints in order to generate profit maximizing predation. The present paper uses a highly stylized model of Cournot duopoly and derives the equilibrium predatory strategy without invoking external constraints except the assumption of asymmetrically distributed information. The underlying intuition behind the model can be summarized as follows. Imagine a firm that is considering entry into a monopolist's market but is uncertain about the incumbent firm's cost structure. If the monopolist has low cost, the rival would rather not enter because it would be difficult to compete with an efficient, low-cost firm. If the monopolist has high costs, however, the rival will definitely enter the market because it can make positive profits. In this situation, if the incumbent firm unwittingly produces its monopoly output, the entrant can infer the nature of the monopolist's cost by observing the monopolist's price. Knowing this, the high cost monopolist increases its output level up to what would have been produced by a low cost firm in an effort to conceal its cost condition. This constitutes limit pricing. The same logic applies when there is a rival competitor in the market. Producing a high cost duopoly output is self-revealing and thus to be avoided. Therefore, the firm chooses to produce the low cost duopoly output, consequently inflicting losses to the entrant or rival producer, thus acting in a predatory manner. The policy implications of the analysis are rather mixed. Contrary to the widely accepted hypothesis that predation is, at best, a negative sum game, and thus, a strategy that is unlikely to be played from the outset, this paper concludes that predation can be real occurence by showing that it can arise as an effective profit maximizing strategy. This conclusion alone may imply that the government can play a role in increasing the consumer welfare, say, by banning predation or limit pricing. However, the problem is that it is rather difficult to ascribe any welfare losses to these kinds of entry deterring practices. This difficulty arises from the fact that if the same practices have been adopted by a low cost firm, they could not be called entry-deterring. Moreover, the high cost incumbent in the model is doing exactly what the low cost firm would have done to keep the market to itself. All in all, this paper suggests that a government injunction of limit and predatory pricing should be applied with great care, evaluating each case on its own basis. Hasty generalization may work to the detriment, rather than the enhancement of consumer welfare.

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