특허침해소송 실효성 강화 방안 비교법적 연구

Abstract

This article proposes improvements to the materials submission order system under the Korean Patent Act by comparing the discovery system of the United States and Japanese civil procedure law, and examines the feasibility of introducing an expert field inspection system from Germany and Japan to South Korea. It also comparatively analyzes the patent infringement investigation system of the China National Intellectual Property Administration. For intellectual property rights to be properly valued, it is crucial that substantial damages can be compensated in infringement lawsuits. Both for proving the infringement of patent rights and for demonstrating the amount of damages, system improvements are needed. A practical solution is to strengthen the effectiveness of the materials submission order under the Patent Act. Article 132(5) of the Patent Act stipulates that, if the respondent does not comply with the document submission order, the facts the applicant wishes to prove by the contents of the materials may be admitted as true. However, due to the discretionary power of the judg e, the sanctions are not always effective, limiting their practical use. To resolve the issue of parties potentially inducing the revocation of first-instance court rulings by submitting new materials during the appeal process, it is suggested to introduce a new clause, proposed Article 132(6). This new clause states that the court can dismiss materials belatedly submitted for attack or defense. With this, it is expected that the first instance court will be able to admit facts according to Article 132(5) of the Patent Act, without worrying about new evidence being submitted at the appellate court. If a system of expert field investigation, like those in Germany or Japan, were introduced in South Korea, there is a possibility that the procedure would be abused. It seems there are numerous preconditions, such as strengthening of punishments and education for the protection of trade secrets, to be addressed before the introduction of an expert field inspection system.