한중일 3국의 중재제도의 조화를 위한 소고 - 특허권 중재를 중심으로 -

• 영문명: A Study on the Harmonization of a Mediation System through a FTA among China, Japan, and Korea — Focused on the Patent Mediation —
• 발행기관: 한국중재학회
• 저자명: 이헌희(Heon-hui Lee)
• 간행물 정보: 『중재연구』 제23권 제1호, 153~175쪽, 전체 23쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2013.03.30

영문 초록

The issue of patent validity becomes a subject of dispute under the FTA and there is a definite difference of opinion between China, Japan, and Korea. In other words, the validity of a judgment on the patent was exclusively under the jurisdiction of the administrative agency at a particular patent office. Thus, the issue arises where there is a potential judgment on patent validity. In this case, the Supreme Court rather than the patent office can offer a judgment from a judicial institution and can make a judgment in the case of a medication. In China, however, the lowest possibility of judgment on patent validity is predicted to occur in judicial institutions. Such a judgment is recognized as the Grand Bench Decision in Korea, and the court can judge the patent validation rather than the patent office. That is just the case in the Kilby case—it is invalid for reasons obvious in Japan. Therefore, there is a substantial difference between the three countries. Especially in Japan, where after the Kilby case, they revised the patent law in 2004 to introduce Article 104-3, placing the judgment of patent validity in the court, even if the Apparentness is not requisite. Per this law, infringers can argue for patent invalidity not only the judgment of the patent invalidation but also the infringement lawsuit. From the point of view of Japan, Korea became the judgment of trademark validation by extension and obvious cases can become directly to judge through the Supreme Court about the right that needs to examinations and registrations. In terms of the mediation, it also provides a clue about the judgment of intellectual property validation and expands the scope of the mediation in the future. From now on, in order to have active mediation procedures in the three countries, China, Japan, and Korea would need to unify regulations and application scopes for mediation in the FTA negotiation and to look forward to achieve a vigorous mediation approach.

목차

I. 서 론

II. 특허권 중재의 의의 및 특징

III. 특허권의 중재대상 적격성

IV. 한중일 중재제도 조화방안

V. 결 론

참고문헌

키워드

ADR China Japan and Korea FTA Mediation Unification of Regulations