지적재산권 대리인제도의 개선에 관한 소고

A Study on the Improvement of Patent Agent or Patent Attorney Scheme

Freedom of Occupation under Article 15 of Constitution of the Republic of Korea may be limited by the 'professional qualification' scheme, because public policy requires a high degree of expertise and knowledge for certain profession which has a power of attorney. Likewise, public policy also requires expertise in the field of intellectual property. However, the required expertise in I.P. look different for either application process to obtaining legal rights or dispute resolution procedure to execute legal rights. In principle, the former is more demanding technical expertise, and the latter is more demanding legal expertise. Particularly, the legal specialist with comprehensive legal knowledge throughout civil remedies, including preliminary injunction, seizure, attachment, etc., is more preferred in the patent infringement litigation to protect the right of patentee. In the long term, it would be ideal to train a large number of lawyers with knowledge background in science and technology. It is what was wished to pursue, when U.S. style law school system was first adopted in 2009. If this new system goes well for the next several years, more attorneys with diverse technical background will enter the market than ever. It is when we think of switching ours to the U.S. patent agent/patent attorney scheme. Patent specification and claim is one of the most difficult legal document to write. If the patent claim is not properly written, it is difficult to adequately protect the rights of inventor. Hence, expertise other than general legal practice is required to the application process before Patent Office, and it is proper to distinguish patent agent who can only practice before Patent Office from patent attorney who qualifies as both patent agent and attorney-at-law. It is time to seek to improve intellectual property agency scheme through open discussion to contribute to protect the rights of general public who are consumers of legal services, and also to contribute to create national competitiveness.