Patent Trials

A trial denotes an administrative judgment for the coming into effect, changing, or extinguishing of intellectual property (a patent, utility model, design, or trademark) and for resolving disputes regarding the scope of effectiveness thereof. Unlike patent infringement suits that are handled in general courts, patent trials are handled by the Intellectual Property Tribunal which is a branch of the Korea Intellectual Property Office because those who handle patent trials must have expert knowledge and experience.

Types of Trials

Ex Parte Trials

are trials in which a plaintiff initiates a patent-related procedure against the Commissioner of the Korean Intellectual Property Office. For example, trial for decision for refusal, trial for correction, etc.

Inter parte Trials

are trials against inter partes. For example, trial for invalidation of patent, trial for invalidation of correction, trial for granting a nonexclusive license, etc.

Summary of Patent Litigation

• When wishing to raise a lawsuit at the patent court, a petition must first be drafted and submitted. A petition can be directly drafted by a plaintiff or may be assigned to a lawyer or patent attorney to be drafted.
• The period of filing a patent lawsuit is within 30 days from the date of receipt of a trial ruling/written decision from the Intellectual Property Tribunal or the Plant Variety Protection Committee.
• The plaintiff of a litigation for the cancellation of a trial ruling is limited to a party of a trial (retrial) case, an intervenor, or one who had requested participation in a competent trial (retrial) but received rejection on the participation.
• For ex parte trial cases, the person requesting the trial becomes the plaintiff, whereas, for inter parte trial cases, the person requesting the trial that has received an unfavorable decision or one that has received the request for trial becomes the plaintiff.
• An intervenor is a person that intervened the pending trial and implemented the trial procedures in conjunction with one of the both parties, i.e., plaintiff or defendant, while the trial procedure of others is pending in the tribunal, and can become a plaintiff for litigation for the cancellation of a decision.
• In litigations for the cancellation of a trial ruling, the Commissioner of the Korean Intellectual Property Office becomes the defendant of ex parte trial cases, whereas, the party requesting the trial or the party for whom the trial is requested becomes the defendant of inter parte trial cases.