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1.
When a licensee seeks a declaratory judgment against a
patentee that its products do not infringe the licensed patent, the patentee
bears the burden of persuasion on the issue of infringement.
2.
The Federal Circuit did not lack subject-matter
jurisdiction in this case. Title 28
U. S. C. §1338(a) gives federal district courts exclusive
jurisdiction over “any civil action arising under any Act of Congress
relating to patents,” and §1295(a)(1) gives the Federal Circuit appellate
jurisdiction over any case where jurisdiction in the district court “was
based, in whole or in part, on section 1338.”
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In Korean
traditional civil proceedings, it has long been established that a party who
asserts an existence of right must have the burden of proof.
Therefore, In
Korea, It is natural that defendant should bear a burden of proving
infringement in the plaintiff’s DJ action to confirm non-existence of right
enforcing a patent unlike any other ordinary civil actions.
This rule of burden
applied in the case of the Supreme Court of the U.S. regarding Medtronic v.
Mirowski seems to be very similar to that of Korean traditional case.
I think
that if Medtronic, the licensee, believe that it does not owe royalties because
its products are non-infringing and were to act on such belief, Mirowski, the
licensor, could terminate the license and bring an ordinary federal patent law
action for infringement of Medtronic.
Copyright © CHINSU LEE, but may partially include other’s copyright, This article is for informational purposes and is not intended to constitute legal advice.
Copyright © CHINSU LEE, but may partially include other’s copyright, This article is for informational purposes and is not intended to constitute legal advice.
