Whether or not an ‘Electronic Document’ Belongs the Concept of a Document – Focusing on Notice by a ‘Document’ for Succession of an Employee Invention –

Abstract

Recently, a series of legal amendments have been made to establish the institutional foundation for the purpose to realize paperless society. In that context, the Framework Act on Electronic Documents and Transactions has been enacted and grants the juridical effect to an electronic document, which is the same effect as a paper document. Nonetheless, the Korea Supreme Court has interpreted the meaning of ‘in writing,’ or a document, that was stipulated in other individual Acts only as a paper document, thus causing a confusion in the application of the legal theory regarding the document. Such a confusion may also happen in interpreting what the document that is stipulated under the Invention Promotion Act would exactly mean. Under the Korea Patent Act, an invention originally belongs to the inventor(s) who has invented the invention. Since an employee invention is also one of that inventions, the invention also originally belongs to the employee. Thus, a company (employer) must success that employ invention by notifying to the employee in a right time to obtain a right to patent. Importantly, the notice should be given by a document to the employee. That is, it is very important to clarify whether an electronic document is permitted as an appropriate way for the notification by the employer under the Invention Promotion Act. While there has been discussion to amend the Invention Promotion Act to solve problems arising from a delay in time due to the gap between completion of an employee invention and notification by a company of the intend to succeed that employee invention, however, there has been no discussion regarding whether the document contains the electronic document along with a paper document. Thus, this article examined regarding whether a current concept of the document would embrace the electronic document. This article has figured out that the nature of a document takes into account an idea or an intention contained in the medium as important rather than what type of the recording medium should be to be the document, and the concept of a document is not a fixed concept, but can change flexibly to reflect a certain situation from time to time under dynamic statutory interpretation. However, this article has also figured out that the exact meaning of a document that is stipulated in the Invention Promotion Act is not clear because there was no specific clue in the legislative history for the amended Invention Promotion Act to support an intent to embrace an electronic document. Therefore, this article suggests a legislative method for the amendment of the Invention Promotion Act not only to prevent any confusion in interpreting the meaning of the document, but to clarify that an electronic document has been contained in the concept of the document. Further, this article suggests that ‘in writing,’ which is stipulated, and also used along with a document, in the Invention Promotion Act and the Regulation on the Disposition, Management and Compensation for an Employee Invention of a Public Officer, which is the Enforcement Decree of the Invention Promotion Act, be amended by legislation to remove the term of the ‘in writing’ and insert the term of a document, including the term of an electronic document.