A New Rule, A Major New Risk
The Supreme Court has added a crucial 'subjective element' on top of existing procedural requirements, fundamentally changing the legal environment for patent holders. Previously, adhering to procedure was sufficient, but now, the need to prove a 'lack of intent or negligence' introduces unprecedented uncertainty.
The Evolution of Legal Requirements for Warning Letters
Procedural Requirements
As long as all procedural steps from the Fair Trade Commission's guidelines were followed, sending a letter was generally considered a legitimate exercise of rights.
1. Notify the Infringing Party
Inform manufacturers, importers, or agents
2. Clear Content
Clearly state the scope of rights and facts of infringement
3. Attach Technical Report
(For utility model patents only)
Procedure + Subjective Element
Now, in addition to the original procedural requirements, the Supreme Court has added a subjective standard for review, making the entire process more complex.
1-3. (All Existing Procedural Requirements)
4. New Subjective Element
The rights holder must not have known, or have been negligent in not knowing, that the other party did not infringe.
Potential Impacts of the Judgment
Changes in Legal Certainty and Risk
This judgment significantly reduces legal predictability while greatly increasing the potential risk for patent holders seeking to enforce their rights.
The 'New' Composition of Rights Enforcement (Click Chart)
The definition of legitimate rights enforcement has changed. Click the sections of the donut chart below to learn what each component means.
Click a section of the chart above to display detailed information.
What If...?
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Future Outlook and Uncertainty
While the Supreme Court's judgment aims to curb the abuse of rights, its vague 'negligence' standard has created significant doubts. Why would relying on a professional patent firm's report still constitute 'negligence'? The court provided no clear answer.
This change may chill the legitimate exercise of rights, thereby weakening the overall environment for protecting innovation. How lower courts interpret and apply this new standard will be a key point of observation.
It is widely anticipated that unless there is direct and strong evidence of bad faith, a simple difference in infringement opinions should not be construed as a violation of the Fair Trade Act.