특허심판 전치의 필요성과 제도개선에 관한 연구

Abstract

In Korea, after all the types of disputes such as patent, design, trademark, all industrial property rights, extension of duration, permission of commercial license, etc. must be examined by the Intellectual Property Trial & Appeal Board before lawsuit. Recently, the Korean Bar Association issued a statement claiming to abolish such patent litigation system. The lawyers' assertion is not necessarily about the legal validity of patent litigation system, but rather about the business relationship with the patentee and the status and competence of the patent court. In order to decide the necessity of the patent litigation system, it is first necessary to investigate the actual condition of the current patent referee system and it should be accompanied with a review of whether the patent litigation system is valid in the constitution and the legal system of Korea. It is considered that there is no reason to limit the patent referee system. However the patent referee needs to improve the system to ensure fairness in order to improve the effectiveness and reliability of the people's rights remedy. The independence of the judges in terms of their duties shall be ensured and professional expertise shall be strengthened. The referee structure should be more openly reorganized and the trust of independence and professionalism should be improved by reconciling external experts such as patent attorneys, lawyers, and professors in the field of patent law to non-standing committee members. In addition, judges to which the necessary preconceptions apply should be more strictly enforced in the judicial process, so it is necessary to further supplement or reinforce oral psychology and intensive psychology in order to improve the antecedent psychological structure of patent referees.