특허권침해의심물품에 대한 국경조치시 세관의 역할 재정립 방안

Section 4 of the TRIPS Agreement stipulates special requirements related to border measures and Article 51 stipulates suspension of release against goods being suspected of infringing patent rights by customs authority. Meanwhile, the procedure must be available at least in respect of pirated copyright and counterfeit trademark goods. A reason to limit the application of the measure to “visibly infringing” goods, is that certain customs authorities may not be equipped to properly identify goods which may infringe, e.g. a patent claim of intricate patented-goods. From this point of view, this paper investigates the Customs’ roles of the U.S., EU, Japan and China against suspected patent-right-infringing goods and draws a result that it is not easy for the Customs in the countries to decide whether the goods infringe the patent right or not. Recently, according to the concluded Korea-EU FTA, the Customs is going to enact provisions including patent right in subject matters pending customs clearance. With regards to this, this paper suggests a kind of ways to reestablish the roles of the Customs after considering the relationship the Korea Trade Commission which has implemented investigation and a substantial infringement-decision against suspected patent-right-infringing goods and the conformity with the TRIPS provisions: 1) the Customs staff need to enhance their expertise for suspending clearance against suspected patent-right-infringing goods which is difficult to seemingly clearly decide; 2) it is desirable that the Customs is responsible to not substantially decide infringement but only suspend suspected patent-right-infringing goods by considering a relationship with the roles of the Korea Trade Commission and TRIPS provisions; 3) to build up the conformity of suspending clearance by the Customs, the Council which is deliberative body temporarily operated by the Customs needs to be restructured to higher body as a decision-making body permanently operated; and 4) if the right holder lodge an application in writing with the Korea Trade Commission for a substantial infringement-decision, the application must be adopted with an evidence by amending the Customs Act Enforcement Order in order that the Customs can maintain the suspension of suspected patent-right-infringing goods.