SOUTH KOREA Law and Practice Contributed by: Samuel Lee, Ye In Han, Inkyoung Choi and Jaeyoung Seol, Bae, Kim & Lee LLC
8. Other Relevant Forums/Procedures 8.1 The UPC or Other Forums KTC Investigation Any party that discovers unfair international trade practices with concrete evidence of infringement may file a complaint within one year from the date of the alleged infringement. The Korea Trade Commis ‑ sion (KTC) may undertake an ex officio investigation, if necessary, when there is a reasonable suspicion of unfair international trade practices. If the KTC deter ‑ mines that unfair international trade practices exist, it may issue enforcement measures against the relevant actors, including: • suspension of imports, exports, sales or manufac ‑ turing of infringing products; • a ban on the landing and/or abandonment of the goods; • corrective advertising orders; and • publication of violation of the law, and other neces ‑ sary measures. Customs Suspension of Import and Export Customs may, ex officio or at the request of the pat ‑ ent holder, suspend import and export procedures for products suspected of patent infringement to protect patent rights. 9. Alternative Dispute Resolution 9.1 ADR Options In the life sciences sector, dispute resolution through alternative dispute resolution is less common com ‑ pared to court adjudication. In some cases, the parties may reach an agreement on the amount of damages during court proceedings following a court finding of patent infringement.
10. Settlement/Antitrust 10.1 Considerations and Scrutiny
According to Supreme Court Decision 2012 Du 2449, a “reverse payment agreement”, whereby a patent holder agrees to pay a certain price to a generic drug developer with which it has a patent dispute to end the patent dispute and delay the generic drug developer’s entry into the market for a certain period of time, may constitute a violation of Korean antitrust law. All settlement agreements of patent litigation between a patent holder and a generic drug developer must be submitted to the Korean Fair Trade Commission (KFTC) and the MFDS. The KFTC may also conduct investigations into patent licensing practices, includ ‑ ing reverse payment agreements involving patent abuse, in co-operation with the MFDS on a regular or irregular basis.
11. Collective Redress 11.1 Group Claims
There is no special system for group claims, such as class actions, in relation to allegedly defective medicines/medical devices. Korea does not yet have legal procedures for class action litigation. However, patients may initiate lawsuits as joint plaintiffs under the general civil litigation framework.
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