특허무효심판 청구인 적격- ‘이해관계인’에서 ‘누구든지’로 확대 방안 -

Article 133(1) of the current Korean Patent Act limits the requester for a patent invalidation trial as “an interested person or an examiner.” The patent invalidation trial is a type of administrative trial, and an administrative trial, and furthermore, an administrative litigation is based on the legal principle of the Korean Civil Procedures Act. The legal principle of the Civil Procedures Act requires the plaintiff of a litigation to have the interest of the litigation, so it seems to be natural that the requester of a patent invalidation trial shall have interest in the same trial. However, in the U.S., Japan, China, Taiwan, European Patent Office, Britain, etc., ‘any person’ is permitted to request for a patent invalidation trial. Any person being able to request for a patent invalidation trial against a patent which should be invalidated will correspond to the common good, so those countries do not demand the “interested person” requirement. This study reviewed the legal principles of major countries with a plan to expand the requester of a patent invalidation trial to ‘any person’, and accordingly the following conclusions were derived. First, the standing of the patentee as the requester shall be denied. Second, the request with borrowed name shall be accepted. Third, the licensee’s standing as requester shall be accepted. Fourth, a request by an examiner shall be accepted. Fifth, for the patents registered by certain person or non-joint application, only the person who has the right to receive the patent has the standing as a requester.