Equality, Fairness, and Justice

(Patent & Trademark Newspaper on December 23, 2022)

                                                                                    Myung-Shin KIM

                                                                                    Advisor, The Korean Patent Attorneys Association

The governmental Management Philosophy of the former president, Mr. Jae-In Moon, was that opportunity is equal, the process is fair, and the result is righteous for all. It is excellent wording. We are still determining how much this philosophy has been realized. It would be better if this philosophy were discovered 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 select a patent attorney additionally 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 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 abandoned these bills without any examination by the session's expiration because those bills were contrary to the interests of the Legislation and Judiciary Committee members having qualifications as attorneys at law. The attorneys at law have handled patent application cases, although they do not understand technologies, after qualifying automatically according to the Patent Attorney Law. Patent attorneys, however, needed to have passed through the subjective test on the related laws, including the Patent Law and Civil Procedure Code, and trained in civil procedure practice. Moreover, patent attorneys have represented clients before the Patent Court for revocation suits against the decisions of the Intellectual Property Trial and Appeal Board for 24 years. The legal issues of the Patent Court against the decision of the Intellectual Property Trial and Appeal Board are in regard to whether the technologies in question would be within the scope of the patent claims. The legal issues of patent infringement suits in a district court or the Patent Court are also regard whether the technologies in question would be within the scope of the patent claims. If a court confirms the infringement, then the court renders judgment on 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 always attend the court with the attorneys at law?

Are these opportunity equal, the process fair, and the result 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 needed to gain a technical background, and I have requested my partners who had technical backgrounds to handle technical cases.

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

Before developing several certified agent systems, our government had given automatic licenses of patent attorneys, tax accountants, certified custom agents, the judicial scrivener, and the certified labor consultant to attorneys at law. However, these certified agent systems have been developed a great deal, and the number of qualified persons has increased significantly. For example, the number of registered 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 in which an attorney at law could earn the automatic qualification of a tax accountant was abolished. If so, the similar system in which an attorney at law could earn the automatic qualification of the patent attorney must also be repealed, according to the purport of Tax Law.

Regarding this amended 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 all companies that have experienced patent infringement suits, have eagerly supported these bills for a long time.

When Samsung and Apple proceeded with the cellular phone patent infringement suits worldwide, the attorneys at law and patent attorneys represented them together. The U.K. European Union (27 countries), Japan, and China have allowed patent attorneys to represent clients in court for patent infringement suits for many years. Moreover, considering that advanced technology has become an issue of national security, we should consider more than this bill, which is only a business conflict between attorneys at law and patent attorneys.

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 other 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 members must evade the discussion and voting on the bill. Therefore, the members of the National Assembly who qualify for an attorney at law, must evade themselves from the discussion and voting when there is an examination of 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 problem. If they do not follow the revised National Assembly Law, they may be the subject of Constitutional Appeal, or the Ethics Committee of the National Assembly. 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, attorneys at law by themselves should respect other qualified persons. Through lip service, they can never receive sincere respect from people.

We expect the National Assembly to pass the bill through equality, fairness, and a righteous procedure.