Going forward, patent attorneys will not have to join the Korea Patent Attorneys Association. Until now, the Patent Attorney Act required membership in the association, but the Constitutional Court on the 29th ruled that this provision is not in conformity with the Constitution.
On this day, the Constitutional Court issued a decision of nonconformity to the Constitution on Article 11 of the Patent Attorney Act, which requires patent attorneys to join the association, by a vote of 4 (nonconformity) to 3 (simple unconstitutionality) to 2 (constitutionality). The provision will remain in effect until Oct. 31, 2027, and the National Assembly must amend the Patent Attorney Act by then in line with the purpose of the Constitutional Court's decision.
The Commissioner of the Korean Intellectual Property Office (now Minister of Intellectual Property) in Nov. 2018 imposed a "reprimand" on six people, including a person surnamed Yoo, for not joining the association. They filed an administrative lawsuit with the Seoul Administrative Court, claiming the disciplinary action was null and void. When their request for a constitutional review of Article 11 of the Patent Attorney Act was dismissed, they filed a constitutional complaint in Jan. 2020.
The clause requiring patent attorneys to join the association has existed since the Patent Attorney Act was enacted in 1961. After the 1997 foreign exchange crisis, it was changed to voluntary membership when the act was amended in 1999 as a national regulatory reform measure, but the mandatory membership clause was reintroduced in 2006.
The dispute over mandatory membership in the association is related to conflict between attorneys and patent attorneys. Those who obtain an attorney qualification acquire patent attorney status without passing the patent attorney exam. The association wants to abolish this provision of the act, but it has been blocked by opposition from the Korean Bar Association. Attorneys who do not wish to join the association established a separate "Korea Patent Bar Association," and the association asked the Commissioner of the Korean Intellectual Property Office to discipline them.
Justices Kim Sang-hwan, Kim Hyeong-du, Jeong Hyeong-sik and Oh Young-joon expressed the view of nonconformity to the Constitution on Article 11 of the Patent Attorney Act, which mandates association membership. They said, "Patent attorneys who are attorneys are being forced to join the association against their will, and refusal to join is being used as a means of sanction through discipline," adding, "It infringes on attorney patent attorneys' freedom of association and freedom of occupation."
Justices Kim Bok-hyeong, Jo Han-chang and Ma Eun-hyeok expressed a view of simple unconstitutionality. They said, "Granting the status of a single patent attorney organization to the association suppresses the free expression of opinions by various stakeholders," and added, "Even if simple unconstitutionality is declared, there is no concern that a legal vacuum or confusion will arise."
Justices Jeong Jeong-mi and Jeong Gye-seon expressed a view of constitutionality. They said, "It is difficult to see that the disadvantages imposed on patent attorneys by the provision at issue are more significant than the public interest it seeks to achieve, namely fostering the capabilities and ethical awareness of patent attorneys and promoting the industrial property system and related industry development."
The Constitutional Court side said, "If legislative improvements are made in line with the purpose of the decision going forward, significant changes are expected in the existing patent attorney industry."