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Korean Court Case Report – 2012 – Patent Infringement
관리자 
15-12-28 14:26
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The Korean Supreme Court made an important decision by full bench on January 19, 2012, which will have great effect on patent infringement cases in the future. The case number of the decision was 2010 DA 95390.
 
The Korean Supreme Court ("KSC") in the decision rendered that a court may reject a patent right of the patented invention if it is evident that the patented invention can be invalidated by a trial in the Trial Board of the Korean Patent Office in the future.   
 
 
The decision above is summarized as follows:
 
(a) The invention lacking an inventive step which cannot contribute to the development of technology is in a public domain in which anyone can use it free of charge.
 
(b) Therefore, if a technology lacking an inventive step received a patent by mistake and is monopoly owned by any patentee, it hurts public interests illegally.    
 
(c) Hence, accepting requests for a prohibition of patent infringement or damage compensation by such a patentee who wrongfully acquired a patent right, is to give illegal profits to the patentee and to give unjustifiable pain or damage to any person who is exercising the invention.
 
(d) Viewing the above points, in case it is evident that any patent will be invalidated due to lacking an inventive step in the patented invention, even before such an invalidation trial of the patent becomes final, requests for a prohibition of patent infringement or damage compensation based on the patent fall under an abuse of right and cannot be accepted.
 
(e) In addition, the court handling a patent infringement case
can review and judge as to whether or not the patent in question lacks an inventive step, prior to reviewing the subject matters, if a defendant makes a plea that requests for a prohibition of patent infringement or damage compensation fall under an abuse of right.   
 
 
The KSC's decision above by full bench changed a previous KSC decision. The previous decision was the one rendered on March 23, 2001 (Case No. 98 DA 7209). The previous one he1d that the court may not review as to an inventive step of any patented invention already having novelty and cannot deny the scope of the patent in a patent infringement case.
 
If anyone receives a lawsuit that requests a prohibition of patent infringement or damage compensation, they do not have to readily accept such requests. First of all, they have to investigate as to whether the patented invention lacks an inventive step as well as novelty.
 
Where the patented invention lacks an inventive step, they should make such a plea before the court and submit evidence supporting the plea. If the court determines that the patented invention lacks an inventive step, it will reject the requests of the patentee on the ground of an abuse of right according to the above KSC's decision.
 
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