국제연구개발계약상의 권리의무에 관한 고찰 (A Study on International Research and Development Agreement)

서지정보

· 발행기관 : 국제거래법학회
· 수록지 정보 : 국제거래법연구 / 17권 / 2호 / 363 ~ 399페이지
· 저자명 : 손경한, 박진아

초록

Research and development agreements concern acquisition of know-how, theoretical analysis, studies or experiments relating to products or processes, including experimental production, establishment of necessary facilities, and obtaining of relevant intellectual property rights. In addition to technology license agreements, these days, R&D agreements are frequently employed for international technology cooperation. This is because international R&D agreements are more productive to both parties. It has been proved that R&D arrangement is more beneficial to the party who introduces foreign technology if the party is ready and able to absorb the foreign technology by way of exchange of technical personnel. Especially, R&D arrangement results in much more fruitful accomplishment than typical technology license results, should the technology to be introduced be complicated and therefore require the recipient party on the job training for understanding and digesting the foreign technology. R&D arrangements are also beneficial to the party who transfers the technology because the transferring party can establish long term relationship with the recipient party and can have more opportunities to develop the foreign market. Therefore, the international research and development projects draw attention as a desirable option for international technical co-operation.
It is also true for joint R&D agreements. Joint research and developments by two or more entrepreneurs increase productivity and reduce risk, time and costs for developing the intended technology. Traditionally governments have strictly regulated joint R&D activities due to their concern to market dominance by the parties that developed new technology through the joint collaboration. However, recently they recognized that joint R&D activities promote exchange of know-how and technologies to facilitate technical and economical progress. It rationalizes the manufacture and use of products which enhances consumer welfare, and even promotes competitions among entrepreneurs for the entire market. This is the very rationale for formation of the Commission Regulation (EC) No.2659/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements.
Newly industrializing countries such as Korea must consider using the R&D options for technical cooperation with the countries already having high-tech industries. International R&D can bring improvement of the technological level and expansion of foreign markets.
This paper examines the right and obligation of the parties to international R&D agreements. Establishment of fair terms and conditions of the R&D agreement is likely to enable the parties to reasonably share the resources as well as the risks for the intended research and development. Setting fair contract terms of the international research and development agreements will foster mutual benefits of the parties and secure close cooperation for the current and future project. It will further prevent possible disputes and lead to amicable solutions thereof between the parties.
The R&D agreements, therefore, should allow all the parties to have access to the results of the research and to freely exploit the results of the research. Most R&D agreements provide the parties to obtain intellectual property rights for the results of the research that is decisive for the manufacture or application of the end products. Such intellectual property rights should be shared fairly by the parties. The agreements should also provide that the firms which are commissioned to manufacture be required to fulfill the orders for supplies from all the parties. The R&D agreements should be not only fair but also pro-competitive. The agreements should not require serious anti-competitive practices such as price fixing, limitation of outputs or sales, restrictions of supplies of the products to customers, prohibition of challenging the validity of intellectual property rights, etc.
The types of the international R&D agreements are classified to be Research Commission Agreement, Research Provision Agreement and Joint Research Agreement. This paper further discusses the rights and obligation of the parties to each type of the R&D agreements in addition to discussions of the legal implication of typical provisions for the international R&D agreements.
This paper aims to facilitate the rule setting of domestic and international R&D arrangements like the above mentioned EC R&D Regulation by the Fair Trade Commission of Korea and to facilitate domestic enterprises and research laboratories for their planning and designing international technical cooperation. The author hopes this paper to be useful in application of competition regulations by antitrust authorities as well as in setting contract terms of international R&D agreements by private sectors.

영어초록

Research and development agreements concern acquisition of know-how, theoretical analysis, studies or experiments relating to products or processes, including experimental production, establishment of necessary facilities, and obtaining of relevant intellectual property rights. In addition to technology license agreements, these days, R&D agreements are frequently employed for international technology cooperation. This is because international R&D agreements are more productive to both parties. It has been proved that R&D arrangement is more beneficial to the party who introduces foreign technology if the party is ready and able to absorb the foreign technology by way of exchange of technical personnel. Especially, R&D arrangement results in much more fruitful accomplishment than typical technology license results, should the technology to be introduced be complicated and therefore require the recipient party on the job training for understanding and digesting the foreign technology. R&D arrangements are also beneficial to the party who transfers the technology because the transferring party can establish long term relationship with the recipient party and can have more opportunities to develop the foreign market. Therefore, the international research and development projects draw attention as a desirable option for international technical co-operation.
It is also true for joint R&D agreements. Joint research and developments by two or more entrepreneurs increase productivity and reduce risk, time and costs for developing the intended technology. Traditionally governments have strictly regulated joint R&D activities due to their concern to market dominance by the parties that developed new technology through the joint collaboration. However, recently they recognized that joint R&D activities promote exchange of know-how and technologies to facilitate technical and economical progress. It rationalizes the manufacture and use of products which enhances consumer welfare, and even promotes competitions among entrepreneurs for the entire market. This is the very rationale for formation of the Commission Regulation (EC) No.2659/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements.
Newly industrializing countries such as Korea must consider using the R&D options for technical cooperation with the countries already having high-tech industries. International R&D can bring improvement of the technological level and expansion of foreign markets.
This paper examines the right and obligation of the parties to international R&D agreements. Establishment of fair terms and conditions of the R&D agreement is likely to enable the parties to reasonably share the resources as well as the risks for the intended research and development. Setting fair contract terms of the international research and development agreements will foster mutual benefits of the parties and secure close cooperation for the current and future project. It will further prevent possible disputes and lead to amicable solutions thereof between the parties.
The R&D agreements, therefore, should allow all the parties to have access to the results of the research and to freely exploit the results of the research. Most R&D agreements provide the parties to obtain intellectual property rights for the results of the research that is decisive for the manufacture or application of the end products. Such intellectual property rights should be shared fairly by the parties. The agreements should also provide that the firms which are commissioned to manufacture be required to fulfill the orders for supplies from all the parties. The R&D agreements should be not only fair but also pro-competitive. The agreements should not require serious anti-competitive practices such as price fixing, limitation of outputs or sales, restrictions of supplies of the products to customers, prohibition of challenging the validity of intellectual property rights, etc.
The types of the international R&D agreements are classified to be Research Commission Agreement, Research Provision Agreement and Joint Research Agreement. This paper further discusses the rights and obligation of the parties to each type of the R&D agreements in addition to discussions of the legal implication of typical provisions for the international R&D agreements.
This paper aims to facilitate the rule setting of domestic and international R&D arrangements like the above mentioned EC R&D Regulation by the Fair Trade Commission of Korea and to facilitate domestic enterprises and research laboratories for their planning and designing international technical cooperation. The author hopes this paper to be useful in application of competition regulations by antitrust authorities as well as in setting contract terms of international R&D agreements by private sectors.

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