특허발명의 강제실시 처분에 대한 불복체계의 단일화 가능성

Under the Patent Act, when a private economic entity intends to obtain a compulsory license to a patent invention, it may be requested to the Commissioner of the Korean Intellectual Property Office(KIPO)(Article 107 of Korean Patent Law) or to the Korean Intellectual Property Trial and Appeal Board(IPTAB)(Article 138 of Korean Patent Law). And, where there are disposition of Commissioner and the decision of IPTAB granting compulsory license, the systems of objections to the disposition and the decision are different respectively. That is, the former proceeds in accordance with the Administrative Appeals Act or Administrative Litigation Act, and the latter proceeds at the Patent Court of Korea with exclusive jurisdiction over lawsuits filed against a decision of IPTAB. With respect to this, some argue that the objection systems should be unified. The arguments argue that it is not reasonable for the private economic entity to have different systems of objection, and it must be unified into the proceedings of the Patent Court in order to ensure the parties rights to receive sufficient and professional trials. In the case the Trial for Grant of Non-Exclusive Licenses (Article 138 of Korean Patent Law), however, the main issue covered herein is the interpretation of the scope of claims. On the other hand, in the case of an Adjudication on Grant of Non-Exclusive Licenses (Article 107 of Korean Patent Law), the issue covered herein is mainly related to high legal judgments, such as whether it is in the “public interest” or “particularly necessary”. Therefore it suould be noticed that the rights of the parties from the three-instance trial system under the Constitution would be unjustly deprive if the authority to dispose of an Adjudication on Grant of Non- Exclusive Licenses were exercised by a patent tribunal consisting of non-judges. In conclusion, it is considered desirable to maintain the system of objection under the current Patent Law.