Sanction to the Person Performing Business without Joining the Korean Patent Attorneys Association

(Published in the Intellectual Property News by the Korean Patent Attorneys Association on November 20, 2024)

Myung-Shin Kim, Adviser

The Korean Patent Attorneys Association

All patent attorneys were required to join the Korean Patent Attorneys Association (KPAA) to conduct their professional business. However, this mandatory provision was abolished in 1999, transforming the KPAA from a certified legal association into a fraternal association of patent attorneys. The rationale for this change was to foster better services for legal consumers through free competition. However, no developed country has adopted a similar policy.

In this environment, the quality of services provided by patent attorneys has deteriorated. As a result, the patent attorney system, originally designed to contribute to industrial development, is now hindering it. If the reasoning behind this policy change is sound, it fails to explain why the Korean Bar Association maintained its compulsory membership requirement. Ultimately, this disparity can only be attributed to a perception of the KPAA as a lenient organization. In response, the late former President, Dr. Sang-Hee Lee, and I actively campaigned for the KPAA to return to its status as a certified legal entity.

In August 2005, 15 lawmakers, led by Mr. Byung-Seok Lee, a member of the Industrial Resources Committee of the National Assembly, proposed a bill to revise the Patent Attorney Act. This bill was passed by the National Assembly in February 2006, restoring the KPAA’s status as a certified legal entity after seven years.

However, the initial amendment bill included criminal sanctions for conducting business without joining the KPAA. Although disciplinary action remains possible, the criminal punishment clause was omitted during the legislative process. As a certified legal association, the KPAA is recognized as an essential organization serving the public interest. A mandatory membership system without corresponding criminal penalties is inherently contradictory.

Currently, it is reported that 271 individuals are conducting business without joining the KPAA. According to Article 112 of the Lawyers Act, Article 74 of the Certified Judicial Scriveners Act, Article 53 of the Certified Public Accountants Act, Article 22 of the Tax Agents Act, Article 29 of the Customs Agents Act, and Article 28 of the Certified Labor Agents Act, individuals who conduct business without joining their respective associations can face imprisonment of up to three years or a fine of up to 30 million won.

Key issues such as the role of patent attorneys in patent infringement litigation, the practical training system, exclusive appraisal rights on industrial property, and reasonable fees are vital to the profession. However, establishing criminal penalties for conducting patent attorney business without KPAA membership is also an urgent matter.

If this situation persists, many patent attorneys will lose opportunities to stay updated on new systems and knowledge, thereby failing to provide improved services to legal consumers. These attorneys may prioritize their income over professional development, hindering industrial progress and weakening the KPAA as an organization.

Notably, when a patent attorney drafts a public appraisal on patent infringement, the document must be fair, objective, and meticulously analyze the scope of patent rights and relevant judgments in accordance with the Patent Attorney Act. The KPAA has established special regulations for such appraisals. If an individual who is not a KPAA member produces a biased appraisal, it undermines social justice and impedes industrial development.

In conclusion, as a certified legal entity, the KPAA must adopt criminal penalty provisions similar to those of other professional associations. I strongly urge the KPAA’s executive members to draft a bill amending the Patent Attorney Act to address this issue.