변리사의 소송대리인 자격제도에 관한 법정책적 논의

This paper has studied the legal issues associated with the introduction of the qualification system for patent agent as litigation representative in patent infringement litigation. To this end, this paper has investigated the theories of interpretation on whether to allow patent agent the right to represent lawsuit, analyzed the attitudes of the Supreme Court and the Constitutional Court shown in judicial precedents, and tried to seek legal and political alternatives to improve the system of lawsuit representation by patent agent. In particular, it has been found that there are some disputes between lawyers and patent agents with regard to qualification of representing patent infringement litigation. The argument of patent agents on technical expertise and the existence of needs of the industry should be taken into consideration, but the characteristics of the lawyer system, the nature of the legal system, and the impact on the entire law school system also should be taken into account. Accordingly, the system of allowing patent agents the rights to represent patent infringement litigation is required to be designed only after comprehensive and in-depth discussions on these issues. This paper has also tried to review legislative feasibility of the bill for amending the Patent Agent Act submitted to the National Assembly by its member Wonwook Lee in July 2013 mainly concerning allowing patent agents the rights to jointly represent patent infringement litigation. In addition, this paper argues that the attempt to incorporate the Japan’s joint litigation representation system to our legal system, based on the simple comparative analysis of the patent agent systems in Germany, Japan and the United States, shall be reconsidered for many reasons. The Korean patent agent system is a little different from the Japanese supplementary patent agent system. In addition, it is considered an unbalanced preferential treatment in comparison with other qualified persons to allow patent agents to represent the civil litigation requiring general competency only with completion of regular training. Therefore, the preferred legal and political alternative to improve the system of allowing patent agents to represent litigation shall be sought in comprehensive and multilateral aspects through improvement of the law school system, allowing the multi-disciplinary practice (MDP), introduction of patent agent system, etc. Finally, it is necessary to find a solution for the matter of allowing patent agents to cooperatively represent patent infringement litigation in the more fundamental and long-term aspects in preferential consideration of the citizens’ needs for better legal service.