SOUTH KOREA Law and Practice Contributed by: Samuel Lee, Ye In Han, Inkyoung Choi and Jaeyoung Seol, Bae, Kim & Lee LLC
Appeal Against a Main Action Decision The plaintiff or the defendant may file an appeal against the decision of the first instance within 14 days of notification of the decision. The appeal is heard by the Intellectual Property High Court, which considers the case de novo, examining the same issues as in the first instance. If dissatisfied with the Intellectual Property High Court’s ruling, either the plaintiff or the defendant may appeal to the Supreme Court within 14 days of receipt of the decision of the Intellectual Prop ‑ erty High Court. The Supreme Court does not review factual matters but limits its analysis to whether the decision of the Intellectual Property High Court was legally erroneous. If the patent is invalidated during the main proceed ‑ ing or on appeal, the court may decide to dismiss the plaintiff’s claims. However, if the patentee files a cancellation action in court against the IPTAB’s deci ‑ sion to invalidate the patent, the invalidity decision is not deemed final, and the court in the main proceed ‑ ing may independently determine the validity of the patent. 7.2 Appeal Court(s) Arbiter A three-judge panel of the Intellectual Property High Court hears appeals. 7.3 Special Provisions Patent litigation is generally governed by the Korean Code of Civil Procedure. Specific provisions under the Korean Patent Act apply to patent litigation, including Article 128 of the Patent Act governing the calculation of damages and Article 132 of the Patent Act allow ‑ ing the courts to issue orders for the production of documents. Under Article 128 of the Patent Act, courts can award up to five times the actual damages for wilful patent infringement, in addition to compensating for all prof ‑ its derived from the sales of infringing products. Under Article 132 of the Patent Act, the court may, at the request of the patent holder, order the defendant to submit documents necessary to prove patent infringe ‑ ment or calculate the amount of damages.
is required to bear the statutory litigation costs, which are different from the actual litigation costs. 5.6 Relevance of Claimant/Plaintiff Conduct to Relief In patent infringement cases, the court may not with ‑ hold or reduce damages as a penalty for negative conduct by the plaintiff.
6. Other IP Rights 6.1 Trade Marks
Trade mark disputes in the life sciences and phar ‑ maceutical sectors are relatively common in Korea and are governed by the Korean Trademark Act. As with general trade mark cases, the main issue in a case is often whether the disputed trade mark is likely to cause consumer confusion as to the origin of the product. 6.2 Copyright Copyright disputes in the life sciences and pharma ‑ ceutical sectors are uncommon in Korea. 6.3 Trade Secrets In Korea, there have been several large-scale trade secret disputes involving the strain that produces the botulinum toxin and the toxin manufacturing process. Other cases have involved trade secret leaks related to clinical trials and product development.
7. Appeal 7.1 Timeframe to Appeal Decision Appeal Against a PI
A plaintiff in a PI may file an appeal against the dis ‑ missal of a PI within seven days of being notified of the decision. A defendant in a PI may file an appeal without limitation of time after the PI decision. If the plaintiff appeals the decision to dismiss the PI or the defendant appeals the granting of the PI, the appel ‑ late court will conduct a de novo review, reconsidering the same issues addressed in the first instance. If the patent later becomes conclusively invalid after the PI is granted, the defendant can apply to have the PI cancelled.
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