Patent Court Korea

Korean Patent Court in Change: Expanding its Jurisdiction to Include Infringement Actions By Sang Jo JONG Professor of Law, Seoul National University

The Patent Court: An exclusive jurisdiction to review all rulings/ decisions made by the trial board(Intellectual Property Tribunal) of KIPO

The IP Tribunal: An exclusive jurisdiction to make a decision on patent issuance and validity.

Contributing to the “neutral virtues” of efficiency, accuracy, uniformity, and predictability

Momentum The Hruska Commission The Constitutional Court Decision

Economy

To recover from economic recession and industrial stagnation

To meet the demands for globalization after foreign exchange crisis

Jurisdiction Exclusive subject matter jurisdiction on patent issues

Exclusive subject matter jurisdiction limited to invalidity and issuance

Efficiency Electronic Litigation & Technical Advisers

The US was in the midst of economic recession and industrial stagnation. The creation of the CAFC was expected to help to revitalize industrial innovation through strengthened economic incentive. The lack of uniformity, certainty, and consistency among regional courts of appeals The Federal Courts Improvement Act of 1982 enacted to create the CAFC with exclusive national subject matter jurisdiction over patent appeals

The Trial Board at KIPO The Appeal Board at KIPO Supreme Court

• A panel of three trial examiners • Subject to possible challenges and disqualifications • All appointed by the Commissioner of KIPO • The principle of ex officio examination without guaranteeing fair trial

“Invalidity actions before the Trial Board and the Appeal Board are not enough for fair trials and the old system violated the Constitutional Right to fair trials by judicial courts:” Constitutional Court Decision 92hunga11, 93hunga8·9·10 held on September 28, 1995.

IMF 이후 국제화 영향? To meet the challenges of the new millennium, the Patent Court was established as part of the extensive judicial reforms which took place to commemorate the centennial anniversary of the introduction of modern legal system in Korea. The factual aspects of patent related disputes, previously examined by the Korean Intellectual Property Office (KIPO) in administrative procedures, are now being heard by the Patent Court, which makes possible more effective, expeditious and fair trials. This in turn succeeds in winning confidence, domestically as well as internationally, in the competence of the Korean judiciary to resolve patent related litigation.

The Patent Court was established as part of the extensive judicial reforms which took place to commemorate the centennial anniversary of the introduction of modern legal system in 1895 just before the collapse of the Chosun Dynasty in Korea.

The IMF created a series of bailouts ("rescue packages") for the most-affected economies to enable affected nations to avoid default, tying the packages to currency, banking and financial system reforms.

31.4

46.8

59.1

74.3 75.1 72

86.2 92.9

96.7 97.7

0

20

40

60

80

100

120

2010 2011 2012 2013 2014

Both Parties

Total

• The technical advisor sits on the far-left side of the bench.

• He/she may provide his/her opinions on technical aspects of a case during the court's deliberation process.

• Different from Technical Judges in Germany or technical examiners in Japan

In patent and utility model cases, upon request by the court, technical advisors provide consultation at any time throughout the trial. If the court determines it is necessary, technical advisors may participate in pre-trial and trial hearings and may examine the parties as well as witnesses on technical matters with the permission of a presiding or associate judges. During pre-trial or trial hearings, the technical advisor sits on the far-left side of the bench. Furthermore, he/she may provide his/her opinions on technical aspects of a case during the court's deliberation process.

일반 판사와 동일한 지위. 특허법원에서만 판사직 수행. 대학에서 기술 분야를 전공하고, 동일 기술 분야에서 5년 이상의 실무경험을 가질 것을 요하는데, 현재 특허청에서 7년 이상의 근무경력을 가진 자 중에서 임명. 2000년 말 현재 연방특허법원에는 125명의 판사들이 근무하고 있는데, 그 중 66명이 법률판사이고 나머지 59명은 기술판사이다

• CAFC: pro-patent tendency contributed to innovations

• Impact on computer and biotechnology industries?:

• Patent Court of Korea?: • Percentage of validity and the

number of patent applications

Computer Industry: As F. M. Scherer points out, the Federal Circuit has “rendered decisions greatly strengthening the presumption of patent validity and broad scope in contested cases and [has] increased to occasional billion-dollar thresholds the amount of damages awarded when infringement is proved. These changes bolster incentives for innovators in one respect. But they also make innovation more dangerous—indeed, much like walking through a mine field—in technologies with complex and overlapping patents of uncertain scope. The net effect on incentives is neither obvious nor known.

the rapid growth in biotechnology patenting over the last decade : The unique status of biotechnology follows from the extensive overlap between public and private biotechnology research, the importance of patents to the biotechnology industry, and the high social value accorded to biomedical research.7 These traits have dramatized the tensions between the ownership model of patent law and the open-access principles of science.

Patent Court 26.1% Trial Board 40.3%

in the US

0

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000

180,000

200,000

220,000

1960 1970 1980 1990 2000 2010

Patent applications

Patent registration

Number

Year

Patent Applications and Patents Issued, 1960-2014 in Korea

The category of so-called patent infringement cases, where litigants seek to relieve their grievances by means of damages, injunctions of restitution of commercial credit, are referred to ordinary courts under their respective criminal or civil jurisdiction.

From 58 to 5 District Courts

CAFC에 유사한 전속관할

특허권침해소송을 담당한 지방법원에서의 무효판단