특허침해소송에서 무효항변에 관한 고찰

A Review on the Invalidation Pleading in a Patent Infringement Litigation

The intellectual property right system is an important law system while developing a learning, art and science technology as well as enhancing an international compatibility. The paten right is a kind of right which might be regulated by means of an administrative measure, so-called a patent right provision from the patent office. In case that infringement litigation is fled in relation with a registered patent right, its protective scope is finally determined by means of a decision of the court which governs a detailed contents. In case that an invention patent registered through an intensive examination by the patent office has a certain invalidation reason, a recognition that the invention patent is considered as a valid right until it is invalidated by means of an invalidation decision from the Korean Patent Tribunal is depending on a proper action with respect to an administrative activity. The registration of a patent might be considered as patent examiner’s decision to granting a patent in the Korean Patent Office. Once a patent is regally registered, it is given an effective force. In this case, even when there is an invalidation reason in its patent right, it is recognized that the effectiveness of a patent right has an effective right until it is invalidated trough a patent invalidation decision. In case of Korea, when an inventive step is lack during a invalidation pleading for patent infringement litigation, a right distribution principle is not adapted. According to the Meminger decision by the Supreme Court, it might be interpreted that an adaptation of a right distribution principle might be excluded when there is a significant invalidation reason due to a lack of an inventive step in a invalidation pleading. However, in a civil litigation procedure, since the court is forced to judge based on a truth by a corresponding person and evidence by adapting a pleading principle, a technical content of a corresponding patent and a cited invention should be technically analyzed, and then an inventive step should be considered. So, the judge has a lot of burden in judgment. Japanese government established the Intellectual Property High Court, also a patent attorney having a certain qualification as a proxy of patent infringement litigation is given a litigation pleading right so as to resolve an excusive technical problem in the patent infringement litigation. In recent years, Japan has regulated a law for limiting a right execution of a patent right owner in consideration with many opinions from academic fields based on the Kilby case from the Supreme Court. So, it seems that a controversial argument on a pleading action of a patent invalidation or a pleading action of an over execution of right during a patent infringement litigation procedure has been substantially ended. In the Japanese court, when a corresponding patent lacks a novelty or a corresponding patent lacks an inventive step, when it is a clear invalidation reason of the patent, a plaintiff’s suit is turned down with a summary that it corresponds to an over execution of right. In Korea, it might be considered that an analyzing ability of an infringement litigation court concerning a patent judgment is largely enhanced, and a technical performance is enhanced along with the Meminger decision of the Supreme Court. So, in case that it is clear that an inventive step lacks during a pleading action of a patent invalidation or a pleading action of a right over use, the court might turn down a plaintiff’s suit. However, it is preferred that a patent attorney might be given a litigation proxy right in a patent infringement litigation like Japan so as to reinforce professionalism during representation in suit. And it is preferably needed to regulate a right for limiting a right enforcement of a patent right owner so as to more clarify a system on a invalidation pleading action during patent infringement litigation.