Introduction: Prohibition of double jeopardy (ne bis in idem) in Korea
In accordance with the prohibition of double jeopardy, in Korea, once a patent trial decision on the merits is rendered and becomes final and conclusive, no person may demand a subsequent trial based on the same facts and evidence with the Intellectual Property Trial & Appeal Board (IPTAB). For more details, you may refer to my earlier article, “Timing of Double Jeopardy Judgement in Patent Trials”.
Application of double jeopardy
The prohibition of double jeopardy has the following pros and cons.
Prevents conflicting trial decisions relating to the same matter.
Prevents the burden of a respondent having to respond to the same case more than once.
The IPTAB only need hear a case once, thus reducing the administrative burden placed on government institutions.
The inherent interests of parties seeking a decision via trial could potentially be infringed. Taking an invalidation action as an example, if there are a number of parties who each have their own interests in seeking the invalidation of the same patent, each should have the freedom to bring an invalidation action, but this may not be possible.
The pros described above can be generally understood as pertaining to the preservation of patent stability and promotion of judicial economy. While achieving these aims, the prohibition of double jeopardy applies only to cases where the facts and evidence are identical, so as to not infringe the inherent interests of any party wishing to have their case heard via trial. Such prohibition, however, does not apply to decisions to dismiss trial requests for being unlawful, meaning that other parties can still request a trial on the same grounds, regardless of the original dismissal decision.
Recent precedent of the Supreme Court
The prohibition of double jeopardy in relation to dismissal decisions was recently contested at the Supreme Court (Case 2021HU100777; 3 June 2021).
In the earlier instance Patent Court trial, it was ruled that even if there is a decision to dismiss a trial request for being unlawful, as there is substantive judgement regarding lack of inventiveness when a trial is dismissed after judging the identity of evidence, the prohibition of double jeopardy should still be applied.
However, faithful to the provisions stipulated in the Patent Act, the Supreme Court held that the prohibition of double jeopardy shall not apply to dismissal decisions, as such judgements could impact third parties’ rights to request a trial.
As a result, it may be concluded that the prohibition of double jeopardy does not apply to any dismissal decisions, regardless of whether substantive judgement was carried out in reaching the decision.
Written by Young-min KIM (Partner)
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