Today, we will learn about intellectual property rights, especially “the process and prevention of patent disputes”.
1. Actual Process of Patent Dispute
When a patent dispute arises, the patentee must first determine whether his/her patent is likely to be invalidated. The patentee must extract the differences between the components of the disputed patent to determine the differences and determine whether he or she can prevail in the dispute. Determination of infringement goes through a similar process. By determining the invention that caused the dispute and extracting the same points between the patented invention and the disputed patent, the difference between the two patented inventions is determined and the next action (civil or criminal trial or settlement) is decided. When there is no possibility of invalidation of my patent and it is certain that there is an infringement, I can use my patent right through a claim for damages.
The general process of domestic patent disputes is as follows.
In the case of civil, that is, money, a trial is made in the injunction court or a district court through an objection, and if an appeal is filed, the high court and the Supreme Court follow. You can file a claim for prohibition/prevention of infringement, request for destruction/removal of infringing object, damage, compensation and credit recovery.
In criminal cases, personal matters, the prosecution follows the order of the district court, the high court, and the Supreme Court through filing a complaint with the prosecution. For patent infringement, imprisonment for not more than 7 years or a fine of not more than 100 million won, and for a false presentation, imprisonment for not more than 3 years or a fine of not more than 20 million won may be imposed. For reference, the criminal procedure punishes both the employee and the company in accordance with the penalty provisions.
In the administrative procedure, the Intellectual Property Tribunal, the Patent Court, and then the Supreme Court inquire whether the patent is invalid (win of a disputed patent) or whether the scope of rights is recognized (defeat of the disputed patent). In the case of the Patent Court, in addition to the three judges, one technical examiner is dispatched from the Korean Intellectual Property Office to participate in the trial. This is because, due to the nature of patent disputes, only judges are insufficient to digest the technical nature of the disputes. In the case of the Supreme Court and the High Court, for similar reasons, although they do not participate in the trial, relevant technical experts are dispatched from the Korean Intellectual Property Office and reside there. Also, for the same reason, a system was created in which the first trial was held in the district court and the second trial was brought to the Patent Court (Seoul and the metropolitan area have too many lawsuits, so the Seoul High Court divides the work). When such a patent dispute arises, the patentee or infringer must carefully consider the costs of litigation and the benefits that can be obtained through the dispute. In particular, unlike developed countries such as the United States, Korea has a particularly low level of compensation for a patent infringement.
2. Measures to prevent patent disputes
The following variables can be considered as measures to prevent patent disputes. First of all, from the applicant's point of view, making his/her patent stronger is the top priority. We need to secure the freedom of production of our products by issuing a patent that can adequately cover our products, and register patents that cannot be easily changed by other companies so that it is easy to identify whether the patents of other companies and competitors' products are infringed. In the case of such a patent, the possibility of invalidation is generally low and the patent network is well established. A well-established patent network means that a patent is not a single product, but patents for derivative products are also registered.
And, when using a certain product/technology, you should prepare enough in advance for the prevention of patent disputes. A patent map should be built through prior art research through a thorough technical literature database, and a dispute response manual should be prepared through continuous monitoring of competitor's patents to prepare for possible patent disputes. If these preventive procedures are sufficiently followed, an advantageous notice can be taken in response to competitors, such as developing an evasive design or registering a new technology patent.
Today, we learned about intellectual property rights, especially “the process and prevention of patent disputes”. Next time, we will have time to discuss “Patent Dispute Remedies and Case Study 1”.
*I am a student learning IP, not an IP expert. Translation is also by Google translator and my own, insufficient English skills. I wanted to deliver the IP related contents in the perspectives of a student. I hope my blog helps people like me.
*The above is what I learned from Professor Moon's intellectual property lecture, which can be viewed through K-mooc. Here is the link to the lecture (you may not be able to view it without logging in).
kmooc.kr/courses/course-v1:YeungnamUnivK+YU21900+2021_01/course
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