특허심판의 임의적 전치주의 채택에 대한 소고

Abstract

As the world's fourth-largest patent applicant country, the value of intellectual property rights has been emphasized, and disputes are increasing and the relevant legal system is changing. The system for resolving such disputes is based on a two-pronged structure of patent prosecution and patent infringement litigation, in which necessary preemption is largely applied depending on the type of dispute.
 First of all, in the case of patent law, disputes over patent applications and their examination procedures are basically only subject to patent examination by patent judges as a special form of appeal against patent rejection or patent invalidation, and lawsuits against patent revocation decisions or judgments of patent judges are immediately subject to the exclusive jurisdiction of the patent court, which is the highest court, and the judgment of the patent court can be appealed to the Supreme Court, which consists of a two-trial structure.
 On the other hand, on December 1, 2015, Article 24 of the Civil Procedure Act was amended to concentrate the jurisdiction of the first instance court to the district court with jurisdiction over the location of the high court, and to recognize the overlapping jurisdiction of the Seoul Central District Court for suits related to intellectual property rights, including patents. At the same time, on December 1, 2015, Article 28(4) of the Court Organization Act was amended to concentrate the jurisdiction of appellate review of infringement cases decided by the court of first instance to the Patent Court. In other words, the Patent Court has exclusive jurisdiction over appellate review of infringement cases involving patent rights, which were previously handled by the Seoul High Court and 23 other high courts and district court divisions nationwide. This is to improve the professionalism, consistency, and efficiency of the patent courts, enhance the effectiveness of industrial property rights protection such as seekers' patents, and contribute to enhancing national competitiveness through the advancement of the patent litigation system.
 In light of the above changes in the system, it is necessary to conduct a post-legislative evaluation of the feasibility of introducing necessary precedentialism in patent judgment. In particular, as patent review and patent infringement litigation proceed simultaneously, there may be differences in the views of district courts and patent judges in the handling of patent disputes, resulting in delays. If complaints are raised as a result and the need for legislative improvement is emphasized, it is necessary to evaluate the legislation after the fact. In a situation where the protection environment of patent holders has been greatly improved due to the activation of the patent court, it would be desirable to have a discretionary preemption system that allows parties to choose the judgment of the patent appeals board.