SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
contain trade secrets, and there is a risk of business disruption without such confidentiality order (Article 14-4). Furthermore, under the CPA, if the court record contains trade secrets owned by a party, the court may, at the party’s request, restrict others’ access to the portions containing these trade secrets among the court records (Article 163). 5.9 Defending Against Allegations of Misappropriation Many defences are available against a claim for trade secret misappropriation. Specificity The defendant may argue that the alleged trade secret lacks specificity. Since trade secrets are not disclosed to the public, the exact contents thereof are often not specific, and the alleged trade secrets are fundamentally broad and ambiguous. However, trade secrets should be as specific as possible to the extent that secrecy is not lost, so that this does not interfere with the court hearing and the defendant’s exercise of defence rights. The extent of specificity of a trade secret should be determined by considering various factors, including: • the content and nature of the individual infor - mation alleged as a trade secret; • the content of information known in the rel - evant field; • specific aspects of trade secret misappropria - tion and the content of the claim for injunc - tion; and • the relationship between the trade secret owner and the other party.
If the trade secret is not specific enough, the court will dismiss the plaintiff’s claim (see Supreme Court Decision No 2011Ma1624). Information Not Protectable The defendant may argue that the alleged infor - mation does not qualify as a protectable trade secret. Possible arguments would be that the alleged information has been disclosed or avail - able to the public or that the plaintiff failed to manage the information as a secret. Misappropriation The defendant may target the misappropriation element. It may raise a defence contending that it independently developed or reverse-engi - neered the information, or obtained the informa- tion under licences, among others. Accidental Acquisition The defendant may argue and prove that it acquired trade secrets without the knowledge and without gross negligence that trade secrets were improperly disclosed, or that an act of improper acquisition or improper disclosure of trade secrets occurred when it acquired such trade secrets. In such case, the defendant may be exempt from liability for the plaintiff’s claims for injunction, damages or restoration of reputa - tion (Article 13 of the UCPA). Statute of Limitations The defendant should check whether the statute of limitations has expired before the lawsuit’s fil - ing. 5.10 Dispositive Motions Under the CPA, in the case of a deficient law - suit whose deficiencies are not rectifiable, such lawsuit may be dismissed by a judgment with - out holding any pleadings (Article 219). This is exemplified in the case where a lawsuit is filed
218 CHAMBERS.COM
Powered by FlippingBook