Fixing the patent lawsuit system

Korea claims the world’s largest patent ownership following China, the United States and Japan. A country’s competitiveness as well as corporate viability - as exemplified by litigation wars between Samsung Electronics and Apple - can be swayed by patent applications.

Amid competing claims over exclusionary rights to new technology and inventions, lawsuits are rapidly on the rise. According to the Korean Intellectual Property Office, the number of lawsuits over patent claims and infringement from 2004 to March 2011 was 611. In 2004, 41 lawsuits were filed, but the number has grown annually, reaching 114 in 2010. Multinational holding companies - called “patent trolls” - that specialize in collecting patents and suing others for infringement are also threatening local manufacturers.

But local companies cannot adequately fight and win court battles because of complicated legal procedures. Companies must take lawsuits to different courts - the civil administrative court for infringement and the patent court for patent nullification. Only attorneys can represent corporate clients in the civil administrative court. But in the patent court, patent agents specializing in patents, design, trademarks and practical applications can present before the court. As a result, clients have to hire both special patent agents to build argument and lawyers to represent them.

Patent agents are demanding the same rights as lawyers to represent clients in court. The proposal was submitted in the last National Assembly session but was discarded. It has been re-submitted in the current Assembly, but lawyers are lobbying against it. Lawyers say patent agents representing clients could undermine the country’s legal system and plans for law schools that have been established to foster legal specialists from various fields.

In a warring period over patents, we need more expertise in patent legal battles. Japan revised its law in 2003 to allow patent agents to jointly represent patent lawsuits with attorneys. China runs a separate court where patent agents can solely represent patent disputes. British courts allow co-representation and U.S. patent cases are mostly dealt with by patent attorneys.

It wouldn’t be much of a problem if there were many lawyers who were well versed in intellectual property rights and technology. But in reality, there are few who do. And the result is huge losses for inventors and consumers. The problem should be addressed in the name of national interest.