Center for Advanced Study & Research on Intellectual Property

 

CASRIP Newsletter - Autumn 1999, Volume 6, Issue 2

The Patent Court of Korea: An Overview of the Background, Organization, Jurisdiction and Standard of Review

by Jong-Kyun Woo

1. Introduction

There is no question that a court system greatly affects the efficient operation of the system for resolution of patent disputes. This, in turn, contributes to proper patent protection. In this sense, 1998 will be remembered as one of the most important years in the history of the Korean patent litigation system. It was the year that the Patent Court of Korea, the only high-court-level court that has nationwide subject matter jurisdiction, was newly established. At the same time, the Trial Board and the Appellate Trial Board of the Korean Industrial Property Office (KIPO) were merged into the Industrial Property Tribunal (hereinafter Tribunal). The old system was totally displaced by the new system as of March 1, 1998.

2. Background

2.1. The Patent Litigation System prior to March 1, 1998

The patent litigation system of Korea, before March 1, 1998 (hereinafter old patent litigation system), was set up in 1946 right after independence from Japan. The Trial Board and the Appellate Trial Board were established under the Patent Bureau. In 1961, a revised Patent Law1 replaced the patent law enacted in 1946. However, the basic structure of patent litigation system was not changed and remained in effect until March 1, 1998 despite several amendments to the Patent Law of 1961.

The old patent litigation system had a three-instance procedure consisting of the Trial Board, the Appellate Trial Board2 and the Supreme Court. A person whose application was rejected by an examiner, or who wanted to invalidate or cancel granted or registered rights might request a trial to the Trial Board and the Appellate Trial Board. These disputes were to be finally resolved by the Supreme Court. The jurisdiction over cases involving infringement of industrial property rights belonged to the ordinary courts.

2.2. The Request for a Judgment on the Constitu-tionality of the Old Patent Litigation System

Since the 1980s, some judges and attorneys argued that the old patent litigation system violated the Korean Constitution. Under these circumstances, in 1992, the Supreme Court of Korea, at last, decided to request a judgment on the constitutionality of Patent Law3 article 186(1) (the old patent litigation system) to the Constitutional Court of Korea. That request came during the course of reviewing cases4 for canceling registered trademarks5 that had been appealed from the Appellate Trial Board of the KIPO. The petitioner argued that the provisions of Patent Law Article 186(1) and Trademark Law Article 56(2) (the part applying Patent Law article 186(1) mutatis mutandis) violated two constitutional principles, separation of governmental power and allocation of judicial power to the court as provided in Article 101(1) of the Constitution.6 The petitioner also argued that the provisions deprived citizens of the constitutional right to be tried by judges, as protected by Article 27(1) of the Constitution7. The Supreme Court found that this argument made sense and, thus, requested a constitutionality judgement by the Constitutional Court.

Article 186(1) of the Patent Law provides that "[i]f a person upon whom the decision of the appellate trial is given or the decision of rejection -- is given, is dissatisfied with it, he may bring a final appeal in the Supreme Court -- only in cases where the final appeal is brought by the reason that the decision on trial or the decision is in contravention of acts and subordinate statutes." The petitioner and the Supreme Court focused on the portion of the provision which states, "only in cases where the final appeal is brought by the reason that the decision on trial or the decision is in contravention of acts and subordinate statutes." They argued that since a person who didn't satisfy factual findings made in Appellate Trial Board of the KIPO could not appeal to the Supreme Court, the provision deprived citizens of constitutional rights to a trial by judges at least in a fact-finding trial.8

At the request of the Supreme Court, the Constitutional Court started the hearing procedure9 and required the Administrative Branch (The Ministry of Justice and KIPO) to file their opinion regarding the case. In that opinion, the KIPO argued that the fact-law dichotomy was just theoretical logic, and the Constitutional Court of Korea should consider the specialty and complexity of patent litigation in deciding constitutionality.10 While the process was going on, the Supreme Court and the Seoul High Court requested judgments on the constitutionality of Patent Law Article 186(1) in other cases. The Constitutional Court also reviewed these requests.11 The reasons were almost the same as those stated in the first request. The requests for reviewing constitutionality of the provision triggered nation-wide debates over the ideal patent litigation system. In 1995, after revision of the Court Organization Act and the Patent Law, creating the Patent Court and Industrial Property Tribunal, the Constitution Court held that Patent Law Article 186(1) didn't accord with Constitution. However, the Constitutional Court ruled that the provision would be effective until the new system was created. The Patent Court was due to be created on March 1, 1998 and the immediate abolition of the current patent litigation system could produce great confusion.

2.3. Negotiations between the KIPO and the Supreme Court12

In 1993, the Supreme Court created the Committee for the Reform of the Judicial System in order to improve the Korean judicial system. The committee consisted of three subcommittees. The third subcommittee was in charge of reforming the patent litigation system. However, no representatives from the field of science and technology, inventors, industries, patent attorneys and the KIPO were included on the committee because the Supreme Court regarded the patent litigation system simply as a matter of litigation procedure. Based on the proposals of the committee, the Supreme Court prepared drafts for amendments to the Patent Law and Court Organization Act in March 1994. The drafts authorized the Seoul High Court, instead of the Supreme Court, to deal with cases appealed from decisions of the KIPO (Appellate Trial Board).

At the end of 1993, the KIPO offered its position to the Supreme Court insisting that the patent litigation system was also a major concern of the administrative branch. Finally, negotiations began on March 3, 1994. The representatives of the two organizations met several times and tried to reach an agreement. The Supreme Court strongly insisted that, like Japan, the Seoul High Court should handle appeals from decisions of the Appellate Trial Board of the KIPO. The KIPO, on the other hand, wanted to introduce independent Patent Court and Technical Judge system like Germany. During the negotiation, the Supreme Court proposed a compromise opinion that allowed the Supreme Court to appoint patent hearing officials in the Seoul High Court. These officials would have stronger powers than technical investigators of the Japanese courts in order to assist judges in patent cases.13 However, the KIPO rejected the proposal since the industry and science and technology field, the beneficiaries of patent system, strongly favored a Patent Court and Technical Judge system. Eventually, the negotiations were broken off with no resolution and the Supreme Court submitted its own bill for changing the patent litigation system (Seoul High Court-Supreme Court) to the National Assembly in April 1994.14

After the Supreme Court submitted the bill, the KIPO tried to persuade the members of the Trade and Industry Committee and the Judicial Committee in the National Assembly that the new patent system should be introduced by the consent of related organizations for the best results. The KIPO also submitted its own bill for the Patent Court and Technical Judge system. The bill, in the form of a petition for enactment, came through the Korean Patent Attorney Association.15 Therefore, two bills on the same issue were before the National Assembly at the same time.

Members of the science and technology field as well as inventors played an important role in establishing the new system. They strongly stated their opinions for the Patent Court and Technical Judge system through broadcasts, street rallies, seminars, and, most importantly, submission of the opinion to the National Assembly.

2.4. The Final Agreement on a New Patent Litigation System

As the debates over the patent litigation system grew more intense, negotiations between the KIPO and the Supreme Court resumed under the mediation of the Judicial Committee in the National Assembly. After several meetings and discussions, a final written agreement was reached between the two parties on July 8, 1994.16 The major points of the agreement were that: 1) the Supreme Court would establish the Patent Court on March 1, 1998, 2) the Supreme Court would appoint technical hearing officials in that court, and 3) the KIPO would merge the Trial Board and the Appellate Trial Board into the Industrial Property Tribunal on March 1, 1998.

According to the agreement, the Court Organization Act amendment bill for establishing the Patent Court and introducing the Technical Hearing Official system passed the National Assembly in July 1994. The Patent Law as well as the Utility Model Law, the Design Law and the Trademark Law for the establishment of the Industrial Property Tribunal and new litigation procedures also passed the National Assembly in December 1994.17

3. Organization and Staffing

3.1. Generally

There are three tiers of courts in Korea: the District Courts (including the specialized Family Court and Administrative Court), the courts of original jurisdiction; the High Courts (including the Patent Court), the intermediate appellate courts; and the Supreme Court.18 The High Courts, except the Patent Court, and the District Courts are divided into geographic districts. The Patent Court is the only high-court-level special court with nationwide jurisdiction like the United States Court of Appeals for the Federal Circuit (CAFC). The Patent Court is composed of a Chief Judge (who is equivalent to the Chief Judge of an ordinary High Court), and three standing panels. Each panel is composed of three judges, including one presiding judge. Nine technical hearing officials dispatched from KIPO and an administrative office assist the panels.19

3.2. Judges

In Korea, the first step to becoming a judge is to pass the National Judicial Examination and complete the two-year training program at the Judicial Research and Training Institute. The Chief Justice appoints judges from among the graduates of the Judicial Research and Training Institute.20

In Korea, legal education is completed at the undergraduate level law school. Although the National Judicial Examination does not require any qualifications of applicants, law school graduates make up the majority of successful applicants. Accordingly, it is very difficult to find judges who have technical backgrounds in Korea.21 Furthermore, judges rotate from court to court every two or three years. The judges of the Patent Court of Korea are appointed from among judges who have served in district courts or high courts and are rotated regularly. In contrast, judges appointed to the CAFC in the United States serve for life in the same position. Therefore, it was natural that the court's creation caused great concern regarding how to secure and enhance the expertise of the Patent Court's judges. To overcome these concerns, the Supreme Court tried to appoint judges to the Patent Court who either had experience in patent cases, or whose academic background is natural science or engineering22. The Supreme Court also decided to have associate judges of the Patent Court serve for three years and to have presiding judges serve for more than three years.23 Finally, in the Patent Court, there are three standing panels consisting of three judges. Each judge belongs to one of the panels and membership does not change according to each case during his/her service with the Patent Court.

3.3. Technical Hearing Officials

The Court Organization Act authorizes the Patent Court to have up to fifteen technical hearing officials to enhance the Court's ability to handle patent cases.24 The technical hearing officials are required to meet at least one of the following qualifications: 1) 5-years experience in the KIPO, 2) 7-year experience as an official in a technology related field, 3) a master degree in science and technology plus 10-year experience, or 4) a Ph.D. in science and technology.25 At present, there are nine technical hearing officials dispatched from the KIPO. The officials were senior examiners or trial examiners in the KIPO, and among them, three officials have mechanics expertise, three have chemical engineering backgrounds, and three have electrical and electronic engineering backgrounds.26 Each panel has three officials whose majors are mechanics, chemistry and electrical & electronic engineering respectively.27 The officials dispatched from the KIPO are supposed to rotate from the Patent Court to the KIPO every two or three years.

The technical hearing official system is a combination of the German technical judge system28 and the Japanese technical investigator system. It is similar to the German system in that the officials can participate in an examination of a lawsuit, ask any question to the litigants on technical matters, and state opinions at a collegiate judgment.29 On the other hand, the system is similar to the Japanese technical investigator system in that the official does not have authority to make decisions in a case. Actually, the technical hearing officials play an important role in patent and utility model cases.30 After a case is assigned to a three-judge panel, a designated technical hearing official explains disputed inventions (technology) including issues and arguments of both parties to a collegiate body.31 He also participates in every preparatory proceeding and oral argument session in which he responds to the judge's question and asks questions to both parties on technical matters.32 Additionally, he sits on the left side of the left-associate judge during the oral argument session. After the oral argument session, the official submits a written opinion to the collegiate body and sometimes states his opinion to the collegiate judgment.33 The official's written or oral opinion, however, is not opened to the public.

4. Jurisdiction

4.1. Generally

The Patent Court of Korea, placed between KIPO and the Supreme Court, was created to review decisions of the Tribunal of the KIPO.34 As a result, the new system has a three-instance procedure consisting of the Tribunal, the Patent Court and the Supreme Court. Strictly speaking, the Patent Court is the first instance court in patent litigation procedure because the Industrial Property Tribunal is not a court. The Court Organization Act also treats the Patent Court as the first instance court.35 However, considering that a trial before the Tribunal is a prerequisite procedure before the case is heard in the Patent Court, the Tribunal is substantially carrying out the function and role of the first instance court. The structure of patent litigation instances can be summarized as follows.

Inter parte case
Before Trial board --> Appellate Trial Board --> Supreme Court After Tribunal --> Patent Court --> Supreme Court

Ex parte case
Before Appellate Trial Board --> Supreme Court After Tribunal Patent Court --> Supreme Court

The Jurisdiction of the Patent Court is provided for generally in Article 28quater of the Korean Court Organization Act, which authorizes the Patent Court exclusive jurisdiction:

(1)over cases of the first instance as provided in Article 186(1) of the Patent Law, Article 35 of the Utility Model Law, Article 75 of the Design Law and Article 86(2) of the Trademark Law; and

(2) over cases to which the patent court is competent under other Acts.

Accordingly, the Patent Court reviews appeals from the decisions of the Tribunal with respect to the patent, utility model, design and trademark applications, and the validity of registered rights. In addition, the Patent Court also deals with appeals from decisions of the Variety Protection Committee in the Ministry of Agriculture and Forestry.36

4.2. Appeal from the KIPO

Focusing on patent cases, the Patent Court has jurisdiction over all final decisions from the Tribunal concerning patent applications and the validity of patents. Where an examiner finally rejects a patent application, the applicant may appeal to the Tribunal.37 The Tribunal also reviews the validity of a patent based on a request by an interested party or by an examiner.38 An applicant in an ex parte case or a party in an inter parte case, dissatisfied with the decision of the Tribunal, may appeal to the Patent Court.39 The action should be brought before the Patent Court within thirty days from the date of receiving a certified copy of the decision from the Tribunal.40 The presiding examiner may extend the period for the appeal ex officio for the benefit of a person residing in an area that is remote or difficult to access.

4.3. Infringement Cases

Even though the Patent Court was created as a specialized court to handle patent cases, the court does not have appellate jurisdiction over appeals from district courts in patent infringement cases. The ordinary high courts have jurisdiction over such cases. This dual patent litigation system is similar to that of the Court of Customs and Patent Appeals (CCPA) era in the United States. Currently, however, the CAFC has jurisdiction over the patent infringement cases as well as appeals from the USPTO. The concerns of non-uniform application of the patent laws, as well as expensive, time-consuming and undue "forum shopping" were major reasons for establishing the CAFC in 1982.41

The concern over non-uniform application of the patent laws and other industrial property laws, which can result from the dual patent litigation system, was also raised by the KIPO during the negotiation between KIPO and the Supreme Court in 1994. The KIPO proposed to centralize industrial property infringement cases in the Patent Court. Although the Supreme Court considered the proposal affirmatively, it decided not to adopt it and to reconsider it only after managing the Patent Court for some time. Now, only a year and a half has passed since the Patent Court was created. However, strong arguments have already been raised that the Patent Court should have exclusive jurisdiction over patent (and of course, utility model, design and trademark) infringement cases. Such arguments include the need for: 1) uniform interpretation of patent law, 2) prompt and proper settlement of disputes, 3) convenience of the litigants (avoiding time-consuming and expensive repetitive litigation), and 4) promotion of technology development.42

Under these circumstances, the Chief Judge of the Patent Court publicly announced that the Supreme Court is preparing for the amendment of the Court Organization Act. The amendment is intended to concentrate appellate jurisdiction over patent (and utility model, design and trademark) infringement cases in the Patent Court.43 Therefore, the Patent Court is expected to have exclusive jurisdiction over decisions from district courts in patent infringement cases in the near future. Furthermore, the Supreme Court is also planing to authorize the Patent Court to have jurisdiction over other intellectual property infringement cases such as copyright, computer programs44 and IC layout.

5. Standard of Review

5.1. Generally

In Korea, appellate courts (generally high courts) review both factual findings and legal issues on appeal from the first instance courts.45 Based on the examination proceedings and litigation records of the first-instance court, and new evidence submitted by both parties on appeal, the appellate courts review the lower courts' judgments de novo.46 Both parties may supplement or amend their prior pleadings from the first instance, and produce new means of attack or defense until the conclusion of the pleadings.47 Ordinary appellate courts hear patent infringement cases. Therefore, appellate courts review the lower courts' decisions on patent infringement de novo regardless of the matter of fact or law.

5.2. Standard of Review in the Patent Court

The Patent Court of Korea is a high-court-level court and reviews the decisions of the Tribunal of the KIPO de novo. The KIPO argued that the Patent Court should give more deference to the Tribunal's findings and conclusions similar to the "substantial evidence rule" adopted by the Administrative Procedure Act (APA)48 of the United States. The Supreme Court of Korea refused to adopt the rule because it was unfamiliar to the Korean judicial system. Furthermore, the Court thought that the Patent Court should fully protect citizens' right to be tried by a judge in both factual and legal matters. Finally, Patent Law Article 186, which was introduced according to the Supreme Court's strong insistence, provides that the subject matter of litigation is the Tribunal's decision itself, not an office action of the Commissioner. Therefore, the Patent Court's standard of review, while it is an important issue in the United States, is not an issue in Korea. Instead the issues focus on whether both parties can introduce new facts and evidence in the Patent Court without any limitation, and whether the Patent Court should consider matters not produced in the Tribunal when reviewing the Tribunal's decision, the so-called "scope of review". In the U.S., facts can be introduced only in district courts.

The first case in which the Patent Court addressed the scope of review issue was Dong-Hyun Lim v. Kap-Il Park.49 In Dong-Hyun Lim, the Patent Court held that it would consider newly produced means of attack or defense without any limitation in reviewing the Tribunal's decision in a patent scope confirmation trial.50 After finding that the Patent Court's scope of review should be decided by the interpretation of Patent Law because there was no explicit provision regarding the scope of review in the law, the Patent Court reasoned as follows:

(1) The Patent Court has technical hearing officials who assist the judges with respect to technical matters;

(2) The Tribunal's decision is an administrative action in nature and thus, the court reviews all matters whether or not introduced in the Tribunal as in ordinary appeals from administrative actions; and

(3) A patent scope confirmation trial involves the disputes between adverse parties, which are similar in nature to civil litigation.51

There have been arguments that the court should limit its review only to the matters submitted in the Tribunal, especially when the case involved technical issues. The Patent Court, however, has consistently considered newly introduced evidence in the court when reviewing appeal from the decision of the Tribunal in patent invalidation cases.52

6. Conclusion

The newly established Patent Court of Korea has unique features compared to those of other advanced countries. The new court was designed to secure an efficient patent dispute resolution system and to protect the entire patent system. Although just one and half year has passed since its establishment, it seems to receive good evaluations from inside and outside of the court. However, further changes, such as centralization of jurisdiction, are being attempted and they will contribute to establishing a more satisfactory patent system for all parties.

___________________________

1. Law. No. 950 promulgated on Dec. 31, 1991.
2. Trial Board and Appellate Trial Board were under the KIPO.
3. Law No. 4594 promulgated on Dec. 10, 1993.
4. Dongkuk Trade Co. v. Jaegus Co., 90 HU 1864, 1871, 1888, 1895, 1901, 1918, and 1991. The petitioner withdrew these cases while the hearing process was going on in the Constitutional Court of Korea.
5. Korea has the independent Constitutional Court judging the constitutionality of laws. When it becomes necessary for the ordinary court, i.e., any court of Korea except the Constitutional Court, to ascertain the constitutionality of any statute or provision thereof before applying such law to a pending case, the ordinary court must request the Constitutional Court, on its own initiative or upon the motion of any party to the original case, to have the law's constitutionality reviewed. The court needs to set forth in writing the reason why the term or provision of the law is to be held unconstitutional.
6. 91 KU 2,(Supreme Court, Dec.23, 1991). Constitution Article 101(1) provides that "judicial power shall be vested in courts composed of judges."
7. Id. Constitution Article 27(1) provides that "all citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act."
8. Korea has no jury system. Therefore judges decide the matter of fact as well in every case.
9. 92 HUNKA 1,2.
10. See KIPO's Opinion for the Request for a Judgment on the constitutionality of Patent Law Article 186(1) (1992).
11. 92 HUNKA 11, 93 HUNKA 8,9,10(combined) and 94 HUNKA 1 (Constitutional Court, 1995).
12. See Jong-Kyun Woo, Himkyuwaton Tuekho Shimpanjaedo Kaehyukbangan Sooripjakup [The Process for Reforming Patent Litigation System], TUEKHO JUNGBO[PATENT INFORMATION], Dec. 1994, at 2-11.
13. According to the proposal, the patent hearing officials had powers to make questions to both parties and witnesses regarding technical matters and to state his opinion with respect to the case to collegiate body. However, technical investigators in Japan can not join the examination of lawsuit. Currently, Tokyo High Court, Osaka High Court, Tokyo District Court and Osaka District Court of Japan have Technical Investigators dispatched from the Japanese Patent Office.
14. Actually, the judicial branch has no power to submit a bill directly to the National Assembly under the Korean Constitution. Therefore, the Supreme Court suggested amendment bills of related laws to the National Assembly. The Judicial Committee of the National Assembly adopted it and tried to introduce the bill to a plenary session in the name of the Committee.
15. KIPO could not submit the bill in the name of President because the KIPO had to obtain consent of the Ministry of Justice for it. It seemed to take too much time and the Ministry of Justice was not likely to consent it in spite of the Supreme Court's opposition.
16. The vice commissioner of the KIPO, the judge in charge of investigation bureau of the Supreme Court and the expert advisor of Judicial Committee in the National Assembly signed on the agreement.
17. The Patent Law was promulgated on January 5, 1995 in the Law No. 4892.
18. Korean judicial system is unitary nationwide system administered by the Supreme Court. In that sense, Korean courts are equivalent to the federal courts of the United States.
19. Korean Court Organization Act, arts. 28bis, 28ter and 10.
20. Id. art. 104(3).
21. Recently, many applicants who have technical backgrounds passed the exam due to the increase of selection numbers. However it takes at least 10years for them to be a judge of the Patent Court after passing the exam.
22. Kong-Woong Choi, Tuekho Popwon Ilnyoni Hoekowa Joenmang [Recollection and Prospect at the first Anniversary of the Patent Court], JISIKJAESAN 21 [INTELLECTUAL PROPERTY 21], Mar. 1999, at 9. Kong-Woong Choi is the Chief Judge of the Patent Court. See also Ki-Tae Hong, Tuekhopopwoni Jonmoonhwa Bangankwa Kisoolsimlikwan Woonyongbangan [Proposal for the Specialization of the Patent Court and the Operation of Technical Hearing Official System], in TUEKHOSOSONGJOLCHA JONGBIL WIHAN SEMINAR [SEMINAR FOR THE ESTABLISHMENT OF PATENT LITIGATION PROCEDURE] 25-26 (1997).
23. Kong-Woong Choi, Id.
24.Korean Court Organization Act, art. 54bis. See also The Supreme Court Rules Concerning Technical Hearing Official, rule 3. The ordinary high courts don't have law clerks equivalent to technical hearing officials.
25. The Supreme Court Rules Concerning Technical Hearing Official, rule 2(2).
26. Chung-Kuk Kim, Tuekhopopwoni Choikundonghyang [Recent Tendency of the Patent Court], INTELLECTUAL PROPERTY 21, Mar. 1999, at 48.
27. Id.
28. The Federal Patent Court of Germany has both legal judges and technical judges. Under the German Act on Judge, technical judges have the same power as legal judges in the Federal Patent Court. In a patent case, the panel consists of legal judges and technical judges.
29. Korean Court Organization Act, art 54bis. The officials have to get the permission of the presiding judge in asking questions to litigants and stating his opinion to the collegiate judgment. When the technical hearing official system was introduced, some opponents argued the unconstitutionality of the system because of the official's strong power.
30. See Sung-Jun Choi, Tuekhojaepani Woonyoungbangani Kaesun [Improvement of the Patent Litigation Procedure], in TUEKHOPOPWON ILNYONI HOEKOWA JONMANG [RECOLLECTION AND PROSPECT AT THE FIRST ANNIVASARY OF THE PATENT COURT] 91, 95 (1999) [hereinafter THE FIRST ANNIVASARY OF THE PATENT COURT]. Sung-Jun Choi is a judge of the Patent Court. He also proposed to post technical hearing officials at the Seoul High Court and the Seoul District Court in order to assist judges to handle patent infringement cases. Id. at 97. See also Young-Hwan Yang, Kisool imlikwani Opmooekwanhan Soko [Note on the Task of Technical Hearing Official], INTELLECTUAL PROPERTY 21, Mar. 1999, at 68.
31. Young-Hwan Yang, Id. at 66-67.
32. Id. It is seldom for the officials to make questions to the parties in oral argument session because the questions were already fully made in preparatory proceedings. Id. at 67.
33. Id. at 67-68
34. Concurrently with the creation of the Patent Court, the Industrial Property Tribunal was also newly established by merging the Trial Board and the Appellate Trial Board on March 1, 1998.
35. Korean Court Organization Act, art. 28quater.
36. Korean Seed Industry Act art. 105(1).
37. Korean Patent Law, art. 132ter.
38. Korean Patent Law, art. 133.
39. With respect to registered trademark, the Tribunal may make the trademark canceled as well as invalidated based on request by an interested party or any person. Korean Trademark Law art. 73.
40. Id. art. 186(3).
41. H.R. REP. No. 97-312, at 20-23 (1981).
42. Many persons such as professors, attorneys and patent attorneys are supporting the Patent Court's centralized jurisdiction. See Kyoung-Hwan Son, Tuekhopopwon Woonyoungsangi Moonjaejom [Issues with respect to Operating the Patent Court], in THE FIRST ANNIVASARY OF THE PATENT COURT 53, 57 (1999); Moon-Hwan Kim, Tuekhopopwon Kaewon Iljoonyonkwa Hyanghukwajae [Problems to be Solved by the Patent Court] in THE FIRST ANNIVASARY OF THE PATENT COURT 45, 46-47 (1999); Kwan-Ho Shin, Tuekhopopwoni Baljoenbanghyang [Proposal for the Improvement of the Patent Court] 71, 71-72 (1999); and Sang-Jong Lee, Tuekhososongjaedoi Koojojojong Bangan [Suggestion for the Structural Change of the Patent Litigation System],INTELLECTUAL PROPERTY 21, Mar. 1999, at 33-34.
43. Kong-Woong Choi, supra note 22, at 22.
44. In Korea, computer programs are protected by the Computer Program Protection Act.
45. SANG-HYUN SONG, MINSA SOSONGPOP [THE KOREAN CIVIL PROCEDURE ACT] 725 (1995). In Korea, judges, not juries, decide both factual findings and legal issues.
46. Id. It is called "soksim jui" in Korea.
47. Korean Civil Procedure Act, arts. 378 and 136. See also SANG-HYUN SONG, supra note 45, at 732.
48. Administrative Procedure Act, 5 U.S.C. ยง726(2)(E).
49. Dong-Hyun Lim v. Kap-Il Park, 98 HO 768 (Patent Court, July 3, 1998).
50. Id. A patentee or an interested person may request a patent scope confirmation trial in order to compare the patent claim's scope with the accused product or process. Korean Patent Law, art. 135.
51. Dong-Hyun Lim, Id.
52. Chung-Kuk Kim, supra note 26, at 54.

Last updated 4/27/2012