Equality, Fairness, and Justice

(The Patent & Trademark Newspaper on December 23, 2022)

                                                                                       Myung-Shin Kim

                                                                                       Advisor, The Korean Patent Attorneys Association

The governmental Management Philosophy is that opportunity is equal, the process is fair, and the result is righteous for all. It is great wording. It was a philosophy of the former president, Mr.Jae-In Moon.

We are still determining how much this philosophy has actually been realized. I think it would be better if this philosophy were realized in every field.

A bill that permits a party in a patent infringement suit that has appointed an attorney at law as an agent to now also select a patent attorney was passed through the Industry, Trade and Resources Committee of the National Assembly in May 2022. The bill is now pending in the Legislation and Judiciary Committee. Remarkably, this bill says that a patent attorney must always attend court together with an attorney at law.

Similar bills to this bill had been passed through the Industry, Trade and Resources Committee in November 2006 and November 2008. However, the Legislation and Judiciary Committee abandoas attorneys at law. The lawyers at law have handled patent application cases, although they do not understand technologies, after qualifying automatically according to the Patent Attorney Law. The patent attorneys should have passed through the subjective test on the related laws, including the Patent Law and Civil Procedure Code, and trained for the civil procedure practice. Moreover, they have represented before the Patent Court for the revocation suits against the decision of the Intellectual Property Trial and Appeal Board for 24 years. The legal issues of the Patent Court are whether the technologies in question would be within the scope of the patent claims. The legal issues of the patent infringement suits are also whether the technologies in question would be within the scope of the patent claims, or how much the infringers must compensate the patentees.

Under these situations, is it a reasonable assertion that the patent attorneys do not have the qualification to handle the patent infringement suits, even if the patent attorneys must attend the court together with the lawyers at law? Is it indeed that the opportunity is equal, the process is fair, and the result is righteous? I obtained the qualification of patent attorney in a transition period and have worked as a patent attorney for 50 years. I have experienced many difficulties because I did not have any technical background and I have requested my partners who had technical backgrounds to handle technical cases.

Nevertheless, the lawyers at law file patent applications even though they do not understand the technologies. I think that they may deceive people, and this act will be against social justice.

Before the development of several certified agents systems, our government had given automatic licenses of patent attorneys, tax accountants, certified custom agents, the judicial scrivener, and the certified labor consultant to the lawyers at law. However, these certified agent systems have been developed very much, and the number of qualified persons has increased a lot. For example, the number who registered as patent attorneys at the Korean Intellectual Property Office is more than 10,000 as of last year's end. The number who joined the Korean Patent Attorneys Association is more than 6,000 as of last year's end. Further, in 2017, the system that a lawyer at law could earn the automatic qualification of a tax accountant was abolished. If so, the similar system that a lawyer at law could earn the automatic qualification of the patent attorney must also be abolished, according to the purport of Tax Law.

Regarding this amending bill for Patent Attorneys Law, the Korean Federation of Science and Technology Societies, the National Academy of Engineering of Korea, the Korean Chamber of Commerce and Industry, the Korean Venture Enterprises Association, the Korean Technician Agents Association, the Korean Federation of Small and Medium Business, and almost companies that have experienced the patent infringement suits, have eagerly supported these bills for a long time.

When Samsung and Apple proceeded with the cellular phone patent infringement suits all over the world, the lawyers at law and patent attorneys were represented together. The U.K. European Union (27 countries), Japan, and China have allowed patent attorneys to represent the court for patent infringement suits for many years ago. Moreover, considering that advanced technology becomes an issue of national security, we should look at something other than this bill that is only a business conflict between the lawyers at law and patent attorneys.

On the other hand, in September 2021, the National Assembly stipulated new article 86, Para.5 of the National Assembly Law. It reads that the Legislation and Judiciary Committee can examine only whether the bill is suitable for the legal system or whether wordings are appropriate. Further, in May 2021, the National Assembly stipulated another new articles 32-4 and 5 of the National Assembly Law. It reads that when any member of the National Assembly has a business conflict with a bill, such member must evade the discussion and voting of the bill. Therefore, the members of the National Assembly who have the qualification of a lawyer at law, those members must evade the discussion and voting when examining the bill on whether or not patent attorneys can have the qualification to act as an agent for patent infringement suits because they have the business conflict problems. If they would not follow the revised National Assembly Law, they may be the subject of the invalidation suit. We will watch how they will deal with the bill.

In general, in any field, beginners do not know what they do not know, whereas the experts know what they do not know. To receive more respect from people, lawyers at law, by themselves, should respect other qualified persons. Through lip service, they can never receive sincere respect from people.

We will expect that the National Assembly will pass the bill through equality, fairness, and righteous procedure.