SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
allows the licensee to assert their rights against any third party who subsequently acquires the patent. 1.5 Patent Infringement and Defences Scope of Protection The patentee holds the exclusive right to practise the patented invention as a business. The term “as a busi- ness” includes all activities performed for commercial purposes, excluding only personal or domestic use. The definition of “exploiting” is strictly prescribed by law: for product inventions, it encompasses manufac- turing, using, assigning, leasing, exporting, or import- ing the product, or offering it for assignment or lease; for process inventions, it includes using the process or offering it for use and exploiting products obtained directly by that process. The scope of protection is defined by the matters recited in the claims. Infringement Patent infringement occurs when a third party, without authorisation, exploits a valid patented invention as a business within its scope of protection. Under the All Elements Rule, literal infringement is established if the accused product or process incorporates every element specified in the patent claims. Although not explicitly codified in the Patent Act, the doctrine of equivalents may be applied to find infringement if an element of the accused invention, while not literally identical, performs substantially the same function to achieve the same result as the patented element and such substitution would have been easily conceivable by a person skilled in the art at the time of infringe- ment. While the manufacture or sale of only a portion of a patented invention generally does not constitute infringement, it is considered contributory infringe- ment if the component is used exclusively to exploit the patented invention and has no other use. Defences Statutory defences against infringement include statu- tory non-exclusive licences, such as those based on prior user rights or intervening rights, as well as com- pulsory licences granted during national emergencies or via administrative adjudication. In practice, the most frequently used defences are non-codified, spe- cifically the public domain defence – arguing that the accused product is based on publicly known technol- ogy – and the defence of abuse of rights. The doctrine
of patent exhaustion is also recognised. Whether a FRAND commitment can serve as a direct contractual defence remains a subject of debate, with no estab- lished legal precedent. 1.6 Patent Enforcement and Remedies Jurisdiction Patent disputes in Korea follow a bifurcated system: civil courts adjudicate infringement cases, while the Intellectual Property Trial and Appeal Board (IPTAB) handles validity and scope disputes, including invali- dation actions. Under the centralised jurisdiction sys- tem, first-instance civil patent infringement cases are handled by six specialised district courts: Seoul Cen- tral, Daejeon, Busan, Daegu, Gwangju, and Suwon. Appeals from first-instance civil court judgments and lawsuits challenging IPTAB decisions fall under the exclusive jurisdiction of the IP High Court, while pat- ent-related criminal matters are handled by criminal courts. Timeline A first-instance patent infringement action typical- ly takes about 12 to 24 months, depending on the complexity and significance of the case. If the case proceeds through appeal, the overall litigation period often extends to roughly two to three years. Invalida- tion proceedings before the IPTAB are generally faster, usually concluding within about 9 to 16 months, and often reach a decision while a parallel infringement action is still pending. Remedies Patentees may seek civil remedies, including perma- nent injunctions to restrain or prevent infringement, the destruction of infringing goods, and recovery of dam- ages. To assist patentees with their burden of proof, the Patent Act provides specific methods for calcu- lating damages. While Korean law generally adheres to a compensatory principle, it now permits punitive damages of up to five times the actual damages in cases of wilful infringement. Intentional infringement may also incur criminal penalties. Additionally, patent holders can request border control measures from the Korea Customs Service to suspend or seize counter- feit goods at the border.
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