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Subject |
Patent's Protection(5)-Suspension of Legal Procedure |
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6 |
Name |
IP_Park |
Date |
2003/10/31 16:01:14 |
Homepage |
http://www.ippark.com |
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5. Suspension of Legal Procedure
When infringement of a patent right is complained of, there is often a dispute as to whether the patent is actually infringed. In such an event, the patent owner or the accused party may seek a declaratory ruling from KIPO, in accordance with the procedures specially provided for this purpose (i.e., Trial to Confirm Scope of Patent Right). The decision will declare whether the scope of protection of the patented invention covers the product manufactured or sold, or the process used by the infringer. The infringer may likewise seek a declaratory ruling that the product manufactured or sold by him or the process he is using does not fall within the scope of protection of the patented invention. The declaratory ruling of KIPO is usually persuasive, but it is absolutely not binding on the civil court hearing the patent infringement suit. The infringer may also contest the validity of the patent in the dispute through an invalidation trial before KIPO. Since a patent is deemed to be valid unless or until it is invalidated through an invalidation trial and the court does not have an independent right to have the patent right invalidated regardless of KIPO's decision, the court should, in principle, proceed with the lawsuit based on the validity of the patent right. However, according to Article 164 of Patent Act, the civil court hearing the infringement case of the same patent may, at its discretion, decide to stay the proceedings until KIPO's decision on the invalidation trial is issued. The court/prosecutor's office tends to stay the proceedings when an invalidation trial or a trial of scope of patent against the patent concerned is brought in order to coincide their decision with that of KIPO, until the confirmation date of the trial.
III.Necessary Documents
The necessary documents for proceeding with a civil or criminal action are a notarized Corporation Nationality Certificate and a simply signed Power of Attorney from the plaintiff.
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