Recent Developments in IP Enforcement in Korea
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1 Recent Developments in IP Enforcement in Korea AIPPI Forum 2007 Session I October 5, 2007 Raffles City Convention Center, Singapore Casey Kook-Chan An
2 Statutory Regime for IP Protection AIPPI-KOREA
3 Statutory Regime for IP Protection Industrial Property Rights Patent Act Utility Model Act Design Act Trademark Act Copyright Copyright Act Computer Program Protection Act 2 AIPPI-KOREA
4 Statutory Regime for IP Protection Others Unfair Competition Prevention & Trade Secret Protection Act (trade secret: 1991) Semiconductor Chip Layout Design Act (1992) Seed Industry Act (1995) Acts on Development of Online Digital Contents Industry (2002) 3 AIPPI-KOREA
5 Korean Court System AIPPI-KOREA
6 Korean Court System Supreme Court Patent Court High Court Intellectual Property Tribunal District Court Infringement -Civil -Criminal Validity Issues (Mainly) Patent, UM, TM, Design Infringement Issues (Mainly) 5 AIPPI-KOREA
7 Intellectual Property Tribunal located in Daejeon (where KIPO is seated) Structure 11 Tribunals (a total of 85 trial examiners) Jurisdiction & Review Invalidation, Cancellation, Correction of Patent, Review of KIPO decisions Ex-Officio Examination Procedure Exchange of briefs Expedited review may be possible (e.g., pending litigation) Oral hearings may be held 6 AIPPI-KOREA
8 Patent Court located in Daejeon, est Structure 4 Tribunals (4 presiding judges; a total of 16 judges) 17 Technical Examiners (usually former KIPO examiners) Jurisdiction & Review Decisions by the IPT De Novo Procedure Exchange of briefs Series of hearings at 3-4 weeks interval 7 AIPPI-KOREA
9 Prerequisite for Technical Examiners Five years as KIPO examiner/ IPT trial examiner Seven years as Government official in relevant technical field M.S./M.E. degree + 10 year experience Ph.D. in science/technology Patent attorney/attorney-at-law with B.S./B.E. degree 8 AIPPI-KOREA
10 District Court 18 District Courts (+42 Branch Courts) Seoul Central IP Panels : 11th, 12th & 13th Civ. Div. Two Technical Assistants Jurisdiction & Review Civil and criminal enforcements NO pretrial discovery, no jury Procedure Exchange of briefs Series of hearings at 3-4 weeks interval 9 AIPPI-KOREA
11 High Court Five High Courts Seoul H. Ct. IP Panels : 4th & 5th Civ. Div. Jurisdiction & Review Appeal of decisions by Dist. Ct. De Novo Procedure Exchange of briefs Series of hearings at 3-4 weeks interval 10 AIPPI-KOREA
12 Supreme Court Structure 1 Chief Justice and 12 Justices 9 Assistant IP Judges & 3 Technical Examiners Jurisdiction & Review Decisions of Patent Court and High Courts Only questions of law (no facts) Procedure More and more "summary dismissals" No oral hearings 11 AIPPI-KOREA
13 Remedies AIPPI-KOREA
14 Remedies Civil Remedies Criminal Remedies Administrative Remedies 13 AIPPI-KOREA
15 Preliminary Injunction Civil Remedies Permanent Injunction Damages actual damages infringer s profits reasonable royalties patentee s profit rate x infringer s sales volume court s discretion no willful or punitive damages 14 AIPPI-KOREA
16 Criminal Remedies Punishment Complaint Patent, UM, Design 7 yr, USD 105K Patent Holder or Exclusive Licensee Trademark Same as above Not required Copyright 5 yr, USD 52K Not required Trade secret 7 yr, 10 x profit gained Not required 15 AIPPI-KOREA
17 IC Layout Design Criminal Remedies 3 yr, USD 52K New seed variety 5 yr, USD 31K (complaint required) Digital Contents 1 yr, USD 21K (complaint required) 16 AIPPI-KOREA
18 Administrative Remedies Korean Trade Commission Act on the Investigation of Unfair Trade Practices and Remedies against Injury of Domestic Injury (2001) Unfair Trade Practices include: import, export, or manufacture therefor of products which infringe IPR 17 AIPPI-KOREA
19 Petitioner Administrative Remedies any interested party petition must be filed within one year from infringement KTC shall determine whether or not to commence investigation within 30 days 18 AIPPI-KOREA
20 Administrative Remedies KTC Remedies provisional measures: injunction or other measures to prevent injury corrective measures: suspension of imports, exports, sales, and/or manufacture; blocking of customs clearance; or destruction of infringing goods monetary penalties: based on transaction amount (e.g. 30% of such amount) 19 AIPPI-KOREA
21 Future of IP Enforcement in Korea AIPPI-KOREA
22 Casey Kook-Chan An Kim & Chang, Seoul, Korea Telephone: kcan@ip.kimchang.com
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BNA s Patent, Trademark & Copyright Journal Reproduced with permission from BNA s Patent, Trademark & Copyright Journal, 84 PTCJ 828, 09/14/2012. Copyright 2012 by The Bureau of National Affairs, Inc.