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Title: Trial to Confirm the Scope of a Patent in Korea
Authors: Koo, Daehwan
Keywords: Korean Supreme Court
Scope of a patent
Active trial
Passive trial
Utilizing relationship
Invalidation trial
Issue Date: May-2012
Publisher: NISCAIR-CSIR, India
A trial to confirm the scope of a patent against another in Korea is a trial to confirm whether the subject matter of a third party invention that is being worked or going to be worked falls within the scope of an existing patent right. Notwithstanding the legal limitation of such a trial in the enforcement of patent rights, the number of trial cases is substantial because it is cheaper and quicker than litigation in court and the decisions by technology experts possessing knowledge of intellectual property law convince the parties better. The trial is effective in resolving patent disputes especially between patented inventions that are in a ‘utilizing relationship’, because the trial may judge not only whether the second patented invention infringes the first patented invention, but also whether the two inventions are in a ‘utilizing relationship’.

  However, the Korean Supreme Court has not coherently dealt with either the passive trials to confirm the scope of a patent in general or active trials to confirm the scope of one patent against another in a utilizing relationship, in particular. In order to secure consistency and enhance the lawsuit economy in these trials, it is necessary to regard the trials as legitimate regardless of whether they are active or passive trials. In addition, it is necessary to describe whether a utilizing relationship exists between patents. The notification of a utilizing relationship in passive trials would provide the plaintiff with the likelihood of obtaining a non-exclusive licence. Once the Court finds that the second patent falls within the scope of the first without a utilizing relationship, the Court may inform a patent examiner as to its decision, who then has an obligation to file immediately an invalidation trial for the second patent.
Page(s): 185-194
CC License:  CC Attribution-Noncommercial-No Derivative Works 2.5 India
ISSN: 0975-1076 (Online); 0971-7544 (Print)
Source:JIPR Vol.17(3) [May 2012]

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