The Principles and Structure of Patent Litigation

For the past thirty years, the substantive laws of Korea in the field of patent protection have developed at a very fast rate such that their statutory provisions are now almost the same as those in advanced countries like the U.S. However, the reality of patent protection in Korea is somewhat different from the text of the statutory provisions themselves. While the reality of patent protection depends upon the particular practice of patent litigation, the practice in Korea illustrates several problems and faces several challenges. Ten years ago, the Patent Court was established in Korea. Although the Patent Court has generally been doing its job very well, the relevant industries are not satisfied with its nonobviousness test. Since the concept and criteria of non-obviousness are the most important factors in patent litigation, the Patent Court of Korea must try and provide a clearer and more certain test to the industry so that the industry or potential inventors understand what level of inventiveness is required for patent protection. Given the fact that invalidity of a patent is often raised as a defense in patent litigation, a clearer and more certain non-obviousness test is essential to reduce patent disputes in the future. Patent litigation in Japan and Korea is still based on a two-tier litigation system: although claims for damages and injunctions resulting from patent infringement are litigated in judicia l courts, the validity of patents are, at least initially, filed with the Intellectual Property Tribunal. The Patent Court may only take validity cases as a second trial court after the Tribunal. While ordinary judicial courts are not allowed to resolve the validity issues, the Patent Court is not allowed to handle remedies such as damages or injunctions. Consequently, patent right owners and alleged infringers have to go through two tiers of procedure, costing them much time and money. This paper suggests that the two-tier system should be reformed.