독일 변리사의 법정변론 제도에 관한 법적 고찰

Abstract

As the patent litigations like Samsung-Apple lawsuit have increased in the global knowledge economy, a need for strengthening specialty of representative in a patent litigation is occurring. The bill of amendment of Patent Attorney (agent)’s Act that allows “joint-representation of litigation” has been submitted to the Korea Congress. It is also controversial whether it is appropriate to adopt “right of pleading in court(auftreten vor den gerichten)” codified in the German Patent Attorney’s Act. A patent attorney is allowed as a representative to claims on validity of patent only, not on infringement under a current law. This article examines the role of patent attorneys in patent litigation in Germany, and “right of pleading in court”, and also discusses if it is appropriate to adapt the system into Korea under a comparative analysis. The merits of “right of pleading in court” lead a cooperation between patent attorneys and lawyers, and allow certain role of patent attorneys in an infringement litigation. However, it permits a patent attorney to make argument in court only upon request by the party. The role of patent attorney is limited within certain technological issues determined by a lawyer. A patent attorney has the specialized qualifications necessary for representing clients in acting in all matters and procedures relating to patent law. In practice, it is more effective to determine infringement by a patent attorney who has engineering background and certain legal knowledge in Korea. Since a patent attorney is required to involve more actively in patent lawsuits, “joint-representation of litigation” as a system in Japan and UK is more proper than “right of pleading in court” in Germany.