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학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
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Currently, the Byeonlisas (patent agents or attorneys in Korean legal system) and the Attorneys at law have mutually incompatible interests in regards to the right of legal representation during the patent infringement suits. More specifically, the issue is whether the court may allow the right also to the Byeonlisas as well as to the Attorneys at law.
This issue is also related to another issue whether the appellate instance of patent infringement litigation should be modified to be subject to exclusive jurisdiction of the Patent Court in order to improve technical specialty of the patent litigation.
In regards to the qualification of legal representatives, the Article 8 of the Byeonlisa Act {patent agent (or attorney) act in Korean legal system}, as it stands, is enacted that “the Byeonlisa may be a legal representative on the matter of patent, utility model, and trademark.” However the interpretation of this article is quite different between the Byeonlisas and attorneys at law.
The attorneys at law insist that they themselves, not the Byeonlisa, are competent for patent infringement litigation, because it is not a law suit for patents but only a part of ordinary civil actions.
Oppositely, the Byeonlisas contend that they also are competent for patent infringement litigation in accordance with the provision of the statute, because it really is a law suit regarding patents though it is a part of civil actions.
Although there exist disputes on the interpretations for the provision between those two professional memberships like this, the judges in district courts and high courts have hardly admitted the right of legal representation for the Byeonlisas in practice interpreting that the patent litigation is not a law suit for patents. In actuality, the the Byeonlisas are no match for the court’s practice.
However, the attorneys at law concern that the circumstances may be changed if the jurisdictions of appeal of patent infringement litigation are converged exclusively to a jurisdiction of the Patent Court.
The main issue what the attorneys at law’s fear is that once the Court Organization Act be revised to approve the Patent Court to be a competent court for the appeal of patent infringement actions, they then will lose the ground for insisting that infringement actions are not law suits for patents (cause the Patent Court is not competent other than the law suits for patents), and eventually nothing remains but to approve the right of legal representation for the patent infringement litigation also to the Byeonlisas.
Namely, the inner reason for the attorneys at law to oppose against convergence of the patent jurisdiction is that they have no choice but to share the right of legal representation (for the patent infringement litigation) with the Byeonlisas which they have enjoyed exclusive possession.
With respect to the Byeonlisas’ right of legal representation during patent infringement litigation, this paper firstly investigates many opinions from related experts, then researches legal systems of major foreign countries.
In the end, this paper studies the desirable way to resolve the issue of the Byeonlisas’ right of legal representation during patent infringement litigation, considering that the purpose of patent system is to develop the scientific technologies and industries through the “protection of the invention.”
This paper conclusively suggests that the Byeonlisas in principle represent clients jointly with attorneys at law during patent infringement litigation. However, the Byeonlisas may independently represent the client where he has difficulties in appointment of attorney at law due to economic hardship for example in spite of his due diligence for appointment of attorney at law. This proposal is possible to be easily enacted by amending regulation of the Byeonlisa Act, without any necessity of revision of the Act itself.
This proposal not only mediate between interests of both professional memberships by enforcing joint representation in principle, but it also enables individual inventors, start-up companies or SMEs (Small and Midium sized Enterprises) to lessen economic burdens resulted from joint representation by allowing the Byeonlisa’s independent representation.
In this manner, patent infringement litigation can be resolved more appropriately and promptly by mediating between interests of both professional memberships and participating the Byeonlisa in patent infringement litigation who has specialty in technologies in issue. Through this appropriate and economic patent litigation procedure, development of the scientific technologies and industries can be promoted.
This issue is also related to another issue whether the appellate instance of patent infringement litigation should be modified to be subject to exclusive jurisdiction of the Patent Court in order to improve technical specialty of the patent litigation.
In regards to the qualification of legal representatives, the Article 8 of the Byeonlisa Act {patent agent (or attorney) act in Korean legal system}, as it stands, is enacted that “the Byeonlisa may be a legal representative on the matter of patent, utility model, and trademark.” However the interpretation of this article is quite different between the Byeonlisas and attorneys at law.
The attorneys at law insist that they themselves, not the Byeonlisa, are competent for patent infringement litigation, because it is not a law suit for patents but only a part of ordinary civil actions.
Oppositely, the Byeonlisas contend that they also are competent for patent infringement litigation in accordance with the provision of the statute, because it really is a law suit regarding patents though it is a part of civil actions.
Although there exist disputes on the interpretations for the provision between those two professional memberships like this, the judges in district courts and high courts have hardly admitted the right of legal representation for the Byeonlisas in practice interpreting that the patent litigation is not a law suit for patents. In actuality, the the Byeonlisas are no match for the court’s practice.
However, the attorneys at law concern that the circumstances may be changed if the jurisdictions of appeal of patent infringement litigation are converged exclusively to a jurisdiction of the Patent Court.
The main issue what the attorneys at law’s fear is that once the Court Organization Act be revised to approve the Patent Court to be a competent court for the appeal of patent infringement actions, they then will lose the ground for insisting that infringement actions are not law suits for patents (cause the Patent Court is not competent other than the law suits for patents), and eventually nothing remains but to approve the right of legal representation for the patent infringement litigation also to the Byeonlisas.
Namely, the inner reason for the attorneys at law to oppose against convergence of the patent jurisdiction is that they have no choice but to share the right of legal representation (for the patent infringement litigation) with the Byeonlisas which they have enjoyed exclusive possession.
With respect to the Byeonlisas’ right of legal representation during patent infringement litigation, this paper firstly investigates many opinions from related experts, then researches legal systems of major foreign countries.
In the end, this paper studies the desirable way to resolve the issue of the Byeonlisas’ right of legal representation during patent infringement litigation, considering that the purpose of patent system is to develop the scientific technologies and industries through the “protection of the invention.”
This paper conclusively suggests that the Byeonlisas in principle represent clients jointly with attorneys at law during patent infringement litigation. However, the Byeonlisas may independently represent the client where he has difficulties in appointment of attorney at law due to economic hardship for example in spite of his due diligence for appointment of attorney at law. This proposal is possible to be easily enacted by amending regulation of the Byeonlisa Act, without any necessity of revision of the Act itself.
This proposal not only mediate between interests of both professional memberships by enforcing joint representation in principle, but it also enables individual inventors, start-up companies or SMEs (Small and Midium sized Enterprises) to lessen economic burdens resulted from joint representation by allowing the Byeonlisa’s independent representation.
In this manner, patent infringement litigation can be resolved more appropriately and promptly by mediating between interests of both professional memberships and participating the Byeonlisa in patent infringement litigation who has specialty in technologies in issue. Through this appropriate and economic patent litigation procedure, development of the scientific technologies and industries can be promoted.
목차
Ⅰ. 序 - 특허침해소송과 관련된 변호사와 변리사간의 利害 충돌 내용
Ⅱ. 주요 외국에서 특허침해소송과 관련된 변리사의 역할
Ⅲ. 변리사의 특허침해소송 대리권 문제에 대한 전문가들의 견해 검토
Ⅳ. 특허침해소송 대리권 문제에 대한 타협적인 대안의 제시 - 원칙적인 공동대리와 예외적인 단독대리 -
參考文獻
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