SOUTH KOREA Law and Practice Contributed by: Samuel Lee, Ye In Han, Inkyoung Choi and Jaeyoung Seol, Bae, Kim & Lee LLC
5.2 Final Injunctive Relief Final injunctions issued by the first-instance court can be provisionally enforced even before the judgment becomes final on appeal – ie, enforcement is pos ‑ sible after conclusion of the first instance. However, the defendant may file an appeal and request a stay of execution upon submitting a bond covering the potential damages until the appellate court renders its decision. In the pharmaceutical sector, generic manufactur ‑ ers typically comply with the first-instance court’s final injunction and voluntarily cease production and sales. If a generic manufacturer were to violate the final injunction and continue manufacturing and sell ‑ ing the product, the patent holder could seek enforce ‑ ment through a court bailiff to seize the stock of phar ‑ maceutical products. 5.3 Discretion to Award Injunctive Relief (Final or Preliminary) Under Korean law, when patent infringement is rec ‑ ognised and the patent holder requests an injunction, the court is required to grant the injunction as a mat ‑ ter of principle. Once the court upholds the injunction request, it has no discretion to impose restrictions or conditions on the injunction or to substitute it with damages. 5.4 Damages Damages Calculation Methods Under the Korean Patent Act, the damages for patent infringement are calculated or estimated as follows: • the quantity sold by the generic/biosimilar com ‑ pany multiplied by the patent holder’s profit per unit – for quantities exceeding the patent holder’s production capacity, a reasonable amount the pat ‑ ent holder could have received is applied; • the profit gained by the generic/biosimilar company from the infringing activity; • a reasonable amount the patent holder could have received for licensing the patented invention – seeking claims for additional damages beyond this amount is also permissible; or • an appropriate amount determined by the court based on the entirety of the arguments.
In practice, courts typically recognise a percentage of the generic manufacturer’s sales revenue as the basis for calculating damages. Punitive Damages The punitive damages system has been strengthened to allow compensation of up to five times the actual damages for wilful patent infringement (Article 128 (8) of the Patent Act, effective 21 August 2024). Damages in Pharmaceutical Cases In Korea, there are no special damages provisions applicable exclusively to pharmaceutical cases. Interest on Damages Generally, interest accrues at 12% per annum from the day after the date of judgment in the patent infringe ‑ ment action until the date of payment. When Are Damages Considered? At the patentee’s option, the patentee may choose to pursue both infringement and damages claims sepa ‑ rately or in a single action. The court will first address infringement and validity. If the court finds that the defendant is infringing a valid patent, it will then con ‑ If a PI is enforced but ultimately dismissed on appeal, the alleged infringer may be entitled to seek damages for wrongful enforcement of the PI. However, to date, there have been very few such cases in the pharma ‑ ceutical sector. Third-Party Claim No person other than the patentee and exclusive licensee may claim damages for patent infringement. 5.5 Legal Costs Court fees are relatively low; for example, the court fee for filing a patent infringement suit against a single company without a damages claim is approximately KRW1 million. In cases involving a damages claim, the court fee varies based on the claimed amount. Korean courts will decide how litigation costs (including attor ‑ neys’ fees) are to be divided, at the time of judgment in patent infringement cases. Generally, the losing party sider the calculation of damages. Damages for a Wrongful Injunction
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