Treatment of NPEs (Non-Practicing Entities) under Korean Antitrust Law

Abstract

Legal disputes surrounding non-practicing entities (NPEs) or patent-assertion entities (PAEs) have not been common in Korea yet. Nonetheless, there are concerns raised regarding possible anticompetitive effects of their behavior. In 2014, the Korea Fair Trade Commission (the KFTC) amended its Review Guidelines on Unfair Exercise of Intellectual Property Rights (the IPR Guidelines), and newly included a section addressing competitive effects of NPEs exercise of intellectual property rights. The IPR Guidelines specifically list five types of activities as examples of NPEs abusive or unreasonable anticompetitive behavior. It remains to be seen, however, if NPEs potential anticompetitive behavior addressed in the IPR Guidelines would form a separate and lasting category, in particular considering the lack of clear evidence suggesting NPEs anticompetitive activities in the Korean market so far. Nonetheless and more broadly, the Korean antitrust enforcement authority appears to be ready to assert jurisdiction more proactively and aggressively than before in a case involving a patent-holders exercise of its rights, and the review of relevant court cases suggests that the court is in general willing to grant jurisdiction.