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NISCAIR ONLINE PERIODICALS REPOSITORY (NOPR) >
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Journal of Intellectual Property Rights (JIPR) >
JIPR Vol.17 [2012] >
JIPR Vol.17(3) [May 2012] >
| 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 |
| Abstract: |
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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