Constitutional Court Rules Mandatory Membership in Patent Attorneys Association Incompatible with Constitution

"Excessive Restrictions on the Professional Freedom of Attorneys-at-Law Who Are Also Patent Attorneys"

The Constitutional Court of Korea has ruled that the current provision of the Patent Attorneys Act, which requires all patent attorneys to join the Korean Patent Attorneys Association, is unconstitutional.

Constitutional Court, Jongno-gu, Seoul. Photo by Yonhap News.

On April 29, at the Constitutional Court in Jongno-gu, Seoul, the court delivered its ruling for the constitutional complaint filed by patent attorneys concerning Article 11 of the Patent Attorneys Act. The National Assembly must revise this provision by October next year.

Of the nine justices, four (Kim Sanghwan, Kim Hyungdoo, Jung Hyungsik, and Oh Youngjoon) found the law to be incompatible with the Constitution, three (Kim Bokhyeong, Cho Hanchang, and Ma Eunhyuk) found it unconstitutional, and two (Jung Jungmi and Jung Gyesun) considered it constitutional. A ruling of "incompatibility with the Constitution" means that the law is recognized as unconstitutional, but remains temporarily valid for the sake of legal stability. The court acknowledged the continued validity of the current provision until October 31, 2027, stating that if it were simply declared unconstitutional, the association might not be able to continue operating.

The four justices who found the law incompatible with the Constitution explained that, given the longstanding professional dispute between patent attorneys and attorneys-at-law, "the mandatory membership provision of the association excessively restricts the freedom of association and the freedom of profession of 'attorneys-at-law who are also patent attorneys.'"

The complainants were disciplined with a reprimand by the Commissioner of the Korean Intellectual Property Office (currently the Commissioner of the Intellectual Property Office) in November 2018 for violating Article 11 of the Patent Attorneys Act by not joining the association. They subsequently filed for administrative litigation and a constitutional review, arguing that the disciplinary action was invalid, but after being dismissed by the court, they filed a constitutional complaint in January 2020.

Article 5, Paragraph 1 of the Patent Attorneys Act stipulates that "a person who obtains qualification as a patent attorney must register with the Commissioner of the Intellectual Property Office before commencing practice." Article 11 stipulates that "a patent attorney registered under Paragraph 1 of Article 5 must join the association."

This content was produced with the assistance of AI translation services.