Patent Litigation in Korea

Abstract

For the past thirty years, the substantive laws of Korea in the filed of patent protection have developed very fast so that their statutory provisions are almost the same as those of advanced countries like the U.S.A. However, the reality of patent protection in Korea is somewhat different from the statutory provisions themselves. While the reality of patent protection depends upon the practice of patent litigation, the practice in Korea illustrates several problems and faces a few challenges.

10 years ago, the Patent Court was established in Korea. Although the Patent Court has been doing its job very well in general, the relevant industry is not satisfied with its non-obviousness test.

Since the concept and criteria of non-obviousness is the most important in patent litigation, the Patent Court of Korea must try and provide a more clear and certain test to the industry so that the industry or

potential inventors understand what level of inventiveness is required for patent protection. Given the fact that invalidity of a patent is raised often as a defense in patent litigation, a more clear and certain

non-obviousness test is essential to lower patent disputes in the future.

Japan and Korea is still based on the two-tier litigation system: Although damages and injunctions against patent infringement is litigated in judicial courts, invalidity of patents should first be filed with the Intellectual Property Tribunal. The Patent Court may only take invalidity cases as a second trial court after the Tribunal. While ordinary judicial courts are not allowed to deal with the invalidity issues, the Patent Court are not allowed to deal with remedies such as damages or injunctions.

Consequently, the patent right owners and alleged infringers will all have to go through two tier procedures for a long time with a lot of costs. The paper suggests that the two-tier system should now change.