특허침해소송에서 전문가에 의한 증거수집 방안

Reforms are needed to overcome the limitations in proving patent infringement and damages in current patent cases. Despite the order to submit materials introduced in 2016, there are still challenging limitations in the collection of evidence related to patent infringement. In particular, there is a lack of evidence collection due to the lack of evidence inspection system at the manufacturing facility of the other party. A bill to amend the Patent Act submitted to the National Assembly in 2024 by Rep. Kim Jeong-ho (Bill No. 2203385) (Date of introduction: August 29, 2024), seeks to amend the Patent Act to strengthen the protection of the rights of patent holders and exclusive licensees and to expedite the resolution of disputes by referring to the U.S. discovery system and the German expert inspection system. However, there are also opinions that the bill should be opposed or suspended until the technology of the Korean companies has a competitive advantage. The proposed amendment to the Patent Act (proposed by Rep. Kim Jung-ho) does not focus on the technological competitiveness gap with foreign companies, but rather on proving the facts underlying the right, such as patent infringement and damages, so there may be various situations where SMEs can be both plaintiffs and defendants, or where SMEs can sue large domestic companies. Therefore, the logic of delaying the implementation of this amendment until the technological competitiveness gap is overcome is weak. In view of the infringement of SMEs' patent rights by large domestic or foreign companies, this system is also recognized as an essential system for the coexistence and survival of domestic SMEs. Even if Korean discovery is introduced into the Civil Procedure Act in the future as a way to promote the discovery of the substantive facts between the parties, it is possible to introduce fact-finding by appointing experts in the patent field as a way to supplement judicial review in patent law. This article examines the discovery procedures in the European Union, Germany, France, Japan, the United States, and the United Kingdom in the context of patent infringement litigation from a comparative law perspective, and presents my draft amendments that can be used as a basis for future amendments.