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Practice Areas | Legal Enforcement | Q & A |
 | B. Pre-action 4. Are there provisions to curb groundless threats of patent infringement proceedings? | | |  | Yes. The Fair Trade Commission provides guidelines on reviewing complaints involving improper issuance of warning letters concerning patent infringement. In addition, a person/entity receiving the improper warning letter may seek for a non-infringement declaratory judgement from a court. | | | | C. Court proceedings 1. How are infringement proceedings started? | | | | The plaintiff must file an infringement complaint with a court. As the IP Court is a special court that deals with all IP-related lawsuits, most plaintiffs would file a patent infringement case with the IP Court despite the fact that the IP Court has no exclusive jurisdiction over the matter. | | | | C. Court proceedings 2. Who can bring infringement proceedings (what about licensees and co-owners)? | | | | A patentee may bring an infringement proceeding demanding a person who infringes or is likely to infringe the patent right to stop or prevent such infringement according to Article 96 of the Patent Act.
An exclusive licensee may, within the licensed scope, bring a proceeding on his/her own behalf to stop or prevent patent infringement unless it is otherwise provided for in an agreement, such agreement shall prevail based upon Article 96 of the Patent Act. A non-exclusive licensee, however, does not have the right to make such demands.
In theory, any co-owner of a patent is entitled to bring an infringement proceeding on his/her own behalf without consent from other co-owners, unless otherwise agreed in their agreement; and the outcome of litigation is effective among all co-owners in view of Article 12 of the Patent Act. However, courts have split opinions on this matter. | | |
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