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1. OVERVIEW
IP related cases are handed in two ways. Action against infringement of IP will be dealt with by usual court as a civil case or criminal case while the Patent Court deals with an appeal against decision rendered by Intellectual Property Tribunal (IPT)
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2. LITGATION FOR CANCELLATION OF A TRIAL DECISION (PATENT CASE)
In patent cases, the Patent Court decides on whether the decision of the Intellectual Property Tribunal (IPT) on the rights of patent, utility model, design, or trademark is illegal and should be revoked. The IPT makes decisions on legality of refusal to accept an application for patent registration, on invalidation of patent registration, and on affirmation of the scope of a patent right. The party who is dissatisfied with the decision of the IPT may file a suit seeking to revoke the decision with the Patent Court within 30 days from the date the decision is served. On the principle of separation of powers, the Patent Court can only revoke the decision of the IPT and neither permits patent registration of any invention nor invalidate a patent right.
(1) ABOUT THE PATENT COURT
The Patent Court of Korea was established under Article 3(2) of the Court Organization Act on March 1, 1998. The Court is now located in the city of Daejeon, within about 1.5 hours drive or 150 kilometers away from Seoul.
The Patent Court is an appellate-level court. However, there is no hierarchical relation whatsoever between the cancellation proceedings of the Patent Court and the proceedings of the Intellectual Property tribunal, and the records from the proceedings of the Intellectual Property tribunal are not transferred to the Patent Court. Accordingly, the same contentions and evidences as those already submitted to the Intellectual Property tribunal must be submitted again to the Patent Court for a new determination at the Patent Court. Any appeal of the Patent Court's decisions should be brought directly to the Supreme Court.
(2) JURISDICTION OF THE PATENT COURT
The Patent Court has territorial jurisdiction over the entire nation. Therefore, a suit seeking a review of a ruling or decision made by the trial board(Intellectual Property Tribunal) of KIPO should be filed to the Patent Court regardless of the party's domicile. Any appeal of the Patent Court's decisions should be brought directly to the Supreme Court, as the Patent Court is an appellate-level court.
The Patent Court exercises exclusive jurisdiction over certain matters as prescribed by the Patent Act, the Utility Model Act, the Design Act and the Trademark Act, and other laws including the Seed Industry Act. However, the Court's subject matter jurisdiction is limited to determining the existence or validity of a patent and other registered rights. The category of so-called patent infringement cases, where litigants seek to relieve their grievances by means of damages, injunctions of restitution of commercial credit, is referred to ordinary courts under their respective criminal or civil jurisdiction.
(3) CHARACTERISTICS OF THE PATENT LITIGATION PROCEDURE
(a) Technical Examiners
As described in the foregoing, the Patent Court has technical examiners to assist judges in highly technical matters. They have degrees in various fields of natural science and technology and have worked for KIPO for a long time. They provide consultation throughout the trial on patent, utility model and design cases and, if deemed necessary by the court, participate in the hearing to examine the parties and/or witnesses. Furthermore, they may give opinions on the scientific aspects of a case in the decision handed down by the court.
When participating in the hearing, technical examiners sit on the left side of the bench but do not wear robes. Technical examiners contribute significantly in rendering a decision which harmonizes the legal aspects of patent law with the peculiarities of science and technology.
(b) Intensive Discovery through Preliminary Hearings
Unlike design or trademark disputes which are deemed rather crude in their technical nature, patent and utility model litigations normally go through a series of preliminary hearings. They are conducted by a judge who is a member of a three-judge panel and commissioned to that effect by the panel. During the preliminary hearings, parties are required to submit claims and evidence and explain scientific aspects of the case in detail, using real objects or models if appropriate.
This allows a more thorough and in-depth understanding of the case. At the hearing, parties summarize the results of the preliminary hearings before the bench, and then make arguments and submit documentary evidence or examine witnesses if they failed to do so during the preliminary hearings. The hearing will be closed promptly thereafter.
(c) Representation by Patent Attorneys
In addition to lawyers, Patent attorneys are also permitted to represent parties in the proceedings of the Patent Court, in accordance with Article 8 of the Patent Attorneys Act.
(d) Technology Explanatory Sessions
To understand precisely the technical aspects of patent or utility model related disputes, the Patent Court may hold explanatory sessions where parties or relevant experts can make presentations using drawings, real objects, models, computer graphics or video devices. These are used to support technological and scientific aspects of their arguments.
(e) Effects of the judgement
The Patent Court reviews rulings or decisions made by the trial board of KIPO. A plaintiff's claim seeking annulment of the ruling or decision is dismissed therefore if it is found lacking any merit. Conversely a ruling or decision would be declared void should the plaintiff successfully establish his or her case. Should the Patent Court's judgement annul the ruling or decision of the trial board, the case would be returned to the trial board. As the trial board is bound by Patent Court's decision regarding invalidation, the trial board's new ruling or decision at issue cannot be in disagreement with the grounds cited by the Patent Court's judgement.
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