특허소송 관할집중에 있어서 ‘특허권 등에 관한 소’의 해석상 문제점에 관한 연구 - 헌법합치적 법률해석의 관점에서

Abstract

On November 12, 2015, the National Assembly passed two revised laws (Civil Procedure Act and Court Organization Act) on the jurisdiction consolidation of patent litigations. In accordance with Article 28-4 subparag. 2 of the Court Organization Act, the Patent Court of Korea (as an appellate court) has nationwide exclusive jurisdiction over infringement cases among cases under Article 24(2) of the Civil Procedure Act. Those cases are stipulated as “a lawsuit concerning patent rights” under the Civil Procedure Act but the term “concerning” is vague and comprehensive in meaning. This paper aims to explore how exclusive jurisdiction of district court and civil appellate court(general high court or patent court) over intellectual property right(IPR) cases is determined based on such ambiguous interpretation among the courts For this purpose, the first part of the paper examines the legal principle on jurisdiction consolidation of other countries (e.g., the U.S., Japan, and Germany, etc) as well as recent cases transferred to the Patent Court on the ground of violation of jurisdiction (among the transferred cases, some were just general civil cases that did not directly deal with patent rights, etc.), and sheds light on constitutional issues centering on the right of access to courts and the need for and limitation of statutory interpretation in conformity with the Constitution. The latter part of the paper focuses on issues pertaining to the revised statutes, as seen above, that allow jurisdiction to be consolidated without limit, resulting in the Patent Court hearing nearly all appeals on civil cases if there exist claims on a patent, trademark, etc., and examines possible solutions from a statutory interpretative standpoint. In particular, the paper explores whether “lawsuits concerning patent rights, etc.” can be curtailed to infringement cases on the premise that the doctrine of consolidation of jurisdiction over technology-related disputes cannot be maintained and based on the limited interpretation of the principle of a court’s special jurisdiction. On a final note, the aforesaid issues may be resolved in the event that “lawsuits concerning patent rights, etc.” are confined to infringement cases in practice or the system on designation of jurisdiction becomes more deeply rooted. However, realistic difficulties exist for the system to be fully implemented as well as the problem of technical/non-infringement cases being excluded if “lawsuits concerning patent rights, etc.” are confined to infringement cases. Accordingly, legislative solutions are called for on a case-specific basis.