특허심판과 특허소송의 관계 재정립에 관한 논의

Controversies arise as to whether the plan for re-establishing the relationship between patent trial and patent litigation to convert patent trial from the required preposition principle to the voluntary preposition principle is really an ideal solution for patentrezepts. In case of a dispute by filing a lawsuit directly to the court without going through the trial and decision of the Intellectual Property Trial and Appeal Board by adopting the voluntary preposition principle in patent trial, the appeals to the administrative disposition of the Korean Intellectual Property Office concerning reason for patent refusal, etc. are considered appropriate to be under the jurisdiction of the Seoul Administrative Court and the Daejeon District Court, because the trial decision cancellation litigation is basically an administrative litigation. However, if there is a problem with the patent trial system, it is more urgent to reform the problem before discussing the arbitrariness of the patent trial. Moreover, considering the Constitutional Court’s decision that the administrative trial which is a voluntary pretrial procedure is not unconstitutional even though the judicial procedure is not applied mutatis mutandis, the adoption of the voluntary preposition principle in patent trial may not be helpful even for reform of the Intellectual Property Trial and Appeal Board. Unlike other special administrative trials such as tax trial, patent trial does not appoint experts such as lawyers who are well-versed in patents as non-standing members in composition of trial judges. In addition, all of the judges of the Intellectual Property Trial and Appeal Board are civil servants belonging to the Korean Intellectual Property Office, and many of them have doctoral degrees, but the qualifications of judges are given only by a certain amount of training at the National Intellectual Property Training Institute. In order to improve this problem, it is necessary to hire a number of lawyers specialized in patents as judges and guarantee their tenure and also guarantee the status equivalent to a judge such as Administrative Law Judge (ALJ) or an Administrative Patent Judge (APJ) in the United States. Such a competition system will contribute to resolving the delay in trial by reducing the burden of the firsr instance court on cases by allowing the cases that have undergone administrative trial (patent trial) to be filed directly to the second instance high court (patent court), even though it is arbitrarily displaced. In conclusion, the problem of arbitrary preposition principle in patent trial is a matter of legislative policy, and it is a national task to be solved through legislation by the National Assembly from the perspective of how to re-establish the relationship between patent trial and patent litigation is desirable for the people and beneficial to the national interest.