유럽헌법학회

With 27 member countries, the European Union opened the European Unified Patent Court on June 1st, 2023, leading the way in enhancing the protection of European patent rights and intellectual property rights. The European Union now allows for a single procedure to protect patents in all member states with the opening of the European Unified Patent Court, replacing multiple complex acquisition processes previously demanded in each country. The European Union has achieved harmonization of the effectiveness of patent infringement and invalidity via the establishment of this unified patent system, resulting in administrative cost savings, procedural efficiency, and legal interpretation consistency including translation costs and procedural expediency One distinctive feature of the European Unified Patent Court is the mandatory representation by attorneys or European patent attorneys in litigation proceedings, allowing both attorneys and European patent attorneys to independently represent cases. Furthermore, attorneys from each country are allowed to assist lawyers and European patent attorneys in participating in court proceedings and presenting arguments. Meanwhile, in line with the global trend in intellectual property rights, South Korea enacted the Basic Intellectual Property Law on May 19th, 2011. This law focuses to establish the government's fundamental policies and implementation framework for promoting the creation, protection, and utilization of intellectual property. Its purpose is to ensure that the value of intellectual property is maximized in Korean society, thereby contributing to the development of the nation's economy, society, culture, and the enhancement of the quality of life for its citizens, as stipulated in Article 1. However, in contrast to the European Union, in South Korea, patent attorneys only have exclusive representation rights in patent invalidation lawsuits, not in patent infringement lawsuits in the Patent Court. Currently, representation by patent attorneys in litigation is not recognized in South Korea. However, if representation by patent attorneys in patent litigation is institutionalized in the future, the mandatory representation by attorneys/patent attorneys in the European Unified Patent Court could serve as a useful reference. Considering that attorneys may lack expertise in patents, which are due to engineering and natural sciences, joint representation by attorneys and patent attorneys, limited to patent matters, is not only essential for realizing the advancements in knowledge-based industries but also for protecting consumer legal rights, generating profits for businesses and industries, and enhancing national interests. In today's era of the Fourth Industrial Revolution, where the fortunes of both companies and nations hinge on patent litigation, joint representation by attorneys and patent attorneys has become not just an option but a necessity. This means that practices including solicitor representation in the UK, sole representation by European patent attorneys in the European Union, patent attorneys in the U.S. (combining technical expertise, patent agent qualifications, and legal advocacy), and Japan's qualified patent attorneys have all evolved into global standards for patent litigation. While South Korea may lag behind advanced nations in this aspect, the National Assembly must swiftly legislate the joint representation system for attorneys and patent attorneys in patent litigation, aligning with global trends and meeting the demands of the times, rather than being hindered by egoism in work environment.