SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
1.9 Duration of Protection for Trade Secrets Theoretically, information is protectable as a trade secret for an unlimited period as long as the requirements of a trade secret are met. However, in practice, courts limit the time period for trade secret protection by comprehensively considering various factors (see Supreme Court Decision No 2018Ma7100), including: • the content and difficulty of technical informa - tion; • whether misappropriators or other fair com - petitors were able to obtain trade secrets in a legitimate way, such as by independent development or reverse engineering; • the time taken for the owner to acquire tech - nical information; • the speed of development of relevant tech - nologies; • the personnel/physical facilities of the misap - propriator; and • the former employee’s freedom of job selec - tion and business. Meanwhile, once the information becomes known to the public, it is no longer protectable as a trade secret, and this also applies to the case of accidental disclosure. However, in the case of controlled disclosure of a trade secret, it remains protectable as a trade secret as long it meets the requirements of a trade secret, and this has no impact on the pro - tection period. 1.10 Licensing A trade secret owner is entitled to grant a licence to use its trade secret. As long as the person with the proper licence to use the trade secret maintains/manages the relevant information as a secret, the “secrecy” requirement would contin -
ue to be met. Therefore, when granting a licence to a third party to use the relevant information, the trade secret owner should require that the third party maintain or manage the information as a trade secret by imposing a non-disclosure or confidentiality obligation (or similar). 1.11 What Differentiates Trade Secrets From Other IP Rights Most industrial property rights, including patent, design, trade mark and variety protection rights, are registered after a deliberation process. The registration presumes the existence, scope and ownership of these rights, and the infringer’s intention or negligence. However, the subject of industrial property rights and their requirements are strictly limited by law, and significant costs are incurred in the application, registration and maintenance of these rights. That said, trade secrets do not involve a registra - tion process requiring the disclosure of informa - tion. A disadvantage of this is that, to receive protection, the entity protecting trade secrets must prove: • the existence and characteristics of the rel - evant information; • the fact that the information meets trade secret protection requirements; and • the existence of trade secret misappropria - tion. However, an advantage is that a wide range of information that meets the trade secret protec - tion requirements is protectable, and smaller costs are incurred for maintaining and protect - ing trade secrets relative to industrial property rights.
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