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Enforcement
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New Civil Procedure
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Korean courts have begun implementing new civil procedures on January 1, 2003, which are substantially different from past procedures; the parallel trials system has been changed into the concentrated trial system. Courts have adopted a preparatory hearing system to precede a formal hearing. The new civil procedure is designed to require parties to submit their arguments and evidence before the formal hearing. At the preparatory hearing, the court reviews all arguments and selects unresolved issues between parties that should be tried at the formal hearing. Therefore, parties are required to submit all arguments and evidence within the stage of the preparatory hearing.
Contrary to the old procedure where evidence could be submitted at any time, the new rule requires that evidence be submitted within a specified time period. In principle, parties must submit their claims and evidence within a preparatory hearing. Otherwise, they may be rejected at the court's discretion. However, there are several exceptions: parties can submit their contentions or defenses at a formal hearing provided that the submission does not considerably delay the trial or if the part proves that he was not able to submit evidence for inevitable reasons.
Under the new civil procedure, the court usually allows parties to submit documentary evidence as well as other types of evidence, such as expert opinions and affidavit of witness. In case of a patent infringement, the court usually holds a special hearing for parties to present technological issues. But all evidence may not be submitted and examined at the preparatory hearing. For example, witness testimonies and court inspections may be conducted in a formal hearing. And after the formal hearings are closed, the court renders a judgment. On average, it takes about 10 months before the court reviews an IP infringement action and renders its decision.
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Evidence
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1. Documents Requests
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A party may request the court to order the other party to submit relevant documents in issue. The order enables the party to examine documents necessary to prove his claims even if he does not have the documents at hand. An applicant must file a written request within a specified time for documents request. The new civil procedure broadens the range of documents to be subjected for documents request; i.e., there is no limitation on the subject party or documents.
The new civil procedure has adopted a new tool called Documents List Request or Documents Information Request. The new rule stipulates that courts may order a party possessing documents to produce a list of the titles and brief descriptions of documents. It is designed to help the party obtain necessary information on documents that are at the hands of the other party.
Unlike documents request, the obligation to unveil information on documents applies only to parties who have the required documents and does not apply to a third party. There is no regulation in place for levying a penalty if a party does not comply with the court's order. If the party submits the requested documents after the deadline set by the court, however, the court may dismiss them all together or take it into consideration as whole evidence unfavorably to the party.
When a motion for documents request is filed, the court must examine whether the party in question has the document and whether he has an obligation to submit the document. If the party insists that the document is highly confidential and contains private information and trade secrets, the court may first order the party to submit the document and then examine without participating the other party. Therefore, it is not permissible to refuse to submit documents for reasons of confidentiality or trade secret.
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2. Expert Opinion
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Courts usually rely on expert opinions when it comes to complex issues, such as technology, and for assessing damages. The party requesting the court for an expert opinion should file a written request. The party applying for an expert opinion should also pay the fee in advance. If the party who has applied for an expert opinion wins the suit, he is entitled to recover the fee. The question of who should pay court fees is a highly contentious issue because patent infringement cases often involve a large amount of expert opinion costs.
Patent cases require prudent expert opinions, but there are a number of obstacles in deciding who shall be appointed as experts, what matters need expert opinions, etc. For instance, parties often struggle to come to an agreement on these terms and a test for expert opinion takes considerable time. Thus, it is common that the largest portion of court fees and time might be devoted to the expert opinion procedure.
Expert opinions are presented in specialized areas that are hard for judges to understand without professional background in the area and they may have a big impact on the judges' final ruling. Therefore, parties may use the expert opinion procedure as a more effective method than just presenting evidence. However, it is important to understand that they could bring an adverse result if the procedure is not used with careful consideration.
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3. Court Inspection
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Court inspection is an evidence examination method, whereby judges see and feel the actual object using the five senses. If it is only the appearance of the object that matters, a party may submit documentary evidence containing images of the object, while presenting the actual object only as a reference. Court inspection may be the most powerful means of proving facts if judges can understand the features of an object in question.
In a patent infringement case, however, there are complicated technical issues and understanding an object in the proper way may be difficult. For example, it is difficult for the court to discern a patented product from the non-patented product during court inspection because technical differences between the two products may be subtle, even though the court may recognize the form of the actual object using the five senses. Therefore, courts often prefer expert opinions to court inspection and are reluctant to allow court inspection without expert opinions.
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4. Presentation of Technological Aspects
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For IP infringement actions related to technological issues, courts readily permit both parties to sufficiently explain the related background technologies and technical issues using documents, PowerPoint presentations, real samples and demonstrations. In patent infringement cases, courts hold a special hearing during the preparatory hearing stage after both parties have had enough chances to exchange their arguments and evidence. This procedure can be crucial in determining the outcome of a lawsuit if the technical aspect is important for convincing judges.
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5. Witness Testimony
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Witness examination in the new civil procedure is considerably different from the former procedure. According to the new regulation, an affidavit of a witness to contain most of direct examination is submitted in the form of documentary evidence. As a result, enough time and chance for cross-examination is allowed for the counter party. The affidavit is submitted and accepted as documentary evidence on hearing. However, this does not imply that the witness may not attend the hearing or that the direct examination may be omitted. The witness should take an oath and testify the authenticity of the affidavit or other crucial points in direct examination.
When a witness is hostile and out of the requesting party's control, a direct examination is held after summoning the witness as usual. According to the new civil procedure, the witness must be summoned before the preparatory hearing. The admissibility of witnesses and notification of how the witnesses will be examined are decided during the preparatory hearing.
If the witness, who has been summoned by the court, fails to show up in the courtroom, he will be punished with a penalty or 7 days of imprisonment.
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6. Information Request
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Courts may request public institutions, schools, colleges and individuals to conduct surveys on certain subjects and report on the results to the court. If the court requests to submit a certain document, the requested institution or individual may submit the results of the survey on the subject in question as well as the supporting documents.
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Preliminary Injunction
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1. Overview
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Preliminary actions to preserve rights are designed to either temporarily preserve the current state or to form a preliminary state. The purpose of the preliminary actions is to avoid undue losses until the final decision is reached or executed.
A party who seeks a preliminary injunction must prove that the party is the owner of the right and that there is an urgent necessity to preserve the right. For the case involving a preliminary injunction of IP infringement, the right to be preserved is easily recognized provided that the IP right is valid and that it was infringed. However, there are several obstacles in recognizing the necessity to preserve the right. For example, even if there is evidence of infringement, if the foreign patent owner has not practiced his patent in Korea, the necessity for preliminary injunction will be a subject of debate. This issue is important when it comes to a preliminary injunction of IP infringement.
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2. The Urgent Necessity to Preserve a Right
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In most cases, a preliminary injunction against IP users usually endows IP owners with a satisfactory remedy before the main suit, while it may afflict the other party rather severely. Therefore, courts should carefully consider all aspects regarding the necessity to preserve the right immediately. Furthermore, a higher standard of proof is required to prove the necessity because a preliminary injunction in IP infringement action may come to the same satisfaction as the main lawsuit.
When determining the necessity to preserve a right, the validity of the right and the anticipated outcome of the main suit are important factors. Since validity is a prerequisite, courts often face difficulties in recognizing the necessity to preserve the right immediately if there is a probability of invalidating the patent.
In sum, courts must give a consideration of balances between all interests of parties and anticipate a possible outcome of the main suit. And courts will recognize the necessity to preserve a right if the damage caused by IP infringement is not expected to be fully compensated with only the main lawsuit. Preliminary injunctions are not granted when the right holder's damage is small compared to the infringer's damage. For example, the necessity to preserve is more readily accepted if the right holder invests a large amount of money in R&D, or if the technology related to IP is developing rapidly and instigating fierce competition between the parties. The infringer's intent or negligence is certainly an important factor here as well.
Meanwhile, if the right holder remains indifferent and does not take measures for a considerable period of time despite his awareness of the infringement, it will be difficult to persuade the need to preserve the right. And even more so if the right holder is a foreign national who has not exercised his IP right in Korea.
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3. Trial
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Preliminary Injunction Action to IP infringement is handled by a panel of three judges. In general, the right holder has to file a suit with the court that has jurisdiction over infringer's residence. The court must give a chance for oral hearing in the case of preliminary injunction of IP infringement. As a standard of proof, it requires lower burden of proof than the main civil suit; i.e., it is enough for parties to prove to the extent that the judge may guess it would be certain. Evidence for preliminary actions should be confined within the scope where they can be examined by the court immediately. For example, they can be in the form of documents, samples or witnesses that are readily available for examination at the court. However, for a patent infringement case, courts will usually allow parties to submit experts' testimonies and presentation of technical matters.
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4. Defendant's Motion for Cost Deposit in Advance
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If the plaintiff is a foreigner without permanent address or business office in Korea, the defendant can request the court to order the plaintiff to deposit legal costs in advance. The plaintiff can deposit insurance or bonds instead of money. The defendant may not respond to the plaintiff's complaint until the latter deposits the legal fee . And if the plaintiff fails to deposit the fee within the date specified by the court, the court may drop the suit.
If the plaintiff is a foreigner, the Korean defendant usually files this motion to secure enough time to prepare for defense and counterattack. Thus, it is advisable for foreign plaintiffs to ensure that the legal fee is deposited on time as specified to hamper the infringer's delaying tactics.
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5. IP Owner Liabilities
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The party that wins the preliminary action but loses the main suit is liable for the other party's damages inflicted by exercising the right. The Supreme Court also applies this legal principle to IP cases. Therefore, even if the patentee wins the preliminary action of a patent infringement and/or obtains an expert opinion from a patent attorney or other expert stating that the other party's act constituted an infringement, the patentee must be liable for the other party's damage inflicted by exercising the patent right if he loses the main suit.
Furthermore, according to the Supreme Court, an IP owner is liable for compensating other party's damage if the right holder loses the main suit, if the other party had suffered losses from the cancellation of a contract with his buyer and if the lost was caused by IP owner's warning to the buyer for criminal liability. In other words, it makes no difference whether or not the IP owner obtains a favorable expert opinion from the Korean Patent Attorney Association (KPAA) before his warning.
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Patent Infringement
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1. Overview
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If the concerned parties can fully and clearly understand the scope of a patent right, legal disputes regarding the patent would be dramatically reduced. Also, resolving patent infringement disputes depends mostly on how the court determines the scope of a patent right. Nonetheless, it is not an easy task to determine the scope of a patent right since it involves an intangible technology.
One of the unique features of the Korean legal system is that the IPT holds trials that determine the scope of a patent right. This trial system, called trial to confirm the scope of a patent, is found in very few countries. In Korea, much controversy has been aroused over its legality and theoretical background. While some people still demand the abolishment of these trials, the majority of IP practitioners give them credit for playing a crucial role in resolving IP disputes. Hence, the system is likely to continue to be practiced in the future.
With an exclusive jurisdiction over appeals to the IPT's decisions, the Patent Court reviews appeals for determining the scope of a patent. Through interpreting claims to determine the scope of a patent in reviewing such appeals, the Patent Court plays an important role in the development of legal issues involving patent infringement.
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2. All Elements Rule
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The scope of a patent is defined by the elements specified in a patent claim. In order to determine whether a product infringes a patent, all of the elements specified in the claim must be found in the non-patented product. This simple and basic principle, the so-called "all elements rule," is now widely accepted in Korea.
For a long time, however, it was a subject of many disputes in Korea. For example, courts have often recognized patent infringement even if a product in question missed several unimportant elements provided that it did include most of essential elements.
As is true in Japan, there are two theories widely recognized in Korea. The first one says that any act of using an invented product with essential elements infringes the patent right even if all elements are not found in the product because the essential technology of the patented invention was used by the infringer. The second theory says that it is necessary for all elements to be present in a product because patent applicants are burdened with the task of drafting specifications and applicants must draft claims with extreme precaution. Therefore, applicant's negligence or carelessness shall not be considered for protection.
While courts had supported the first theory on several occasions in the past years, the Patent Court and the Supreme Court have shown preferences for the second theory in recent years. The courts have agreed that there is no patent infringement if a product lacks all elements or its equivalents. Most legal practitioners support the second theory as well. Therefore, it is now well settled that any use of an invention with omitted elements of a patent claim cannot constitute the patent infringement.
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3. Doctrine of Equivalents
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The doctrine of equivalents was not officially adopted in Korea until Sep. 17, 1998, when the Patent Court first addressed the issue. It was later reaffirmed by the Supreme Court on July 28, 2000 , and at present, has become well established as the Korean Patent Law. Before these decisions, however, courts in Korea often recognized patent infringements even if there was no literal infringement. Courts did not strictly apply all elements rule as a standard for determining patent infringement and have interpreted claims broadly if the invention in question were found lacking elements.
By adopting the doctrine of equivalents, determining patent infringement has become more predictable. The theoretical background and the requirements for applying the doctrine of equivalents are similar in Korea and the U.S. Even if a product does not literally infringe a patented claim, courts may find patent infringement under the doctrine of equivalents if a product does substantially the same function in the substantially same way to achieve the substantially the same effect and equivalents of elements are interchangeable by an ordinary skilled person.
In particular, according to the Supreme Court, infringement exists if: (a) the technical concept or principle adopted to address the objective of the two competing products or processes are the same or common; (b) the substituted element in the accused product or process performs substantially the same function in substantially the same manner to provide substantially the same results; and (c) such substitution is obvious to a person skilled in the art at the time of infringement. The Patent Court further recognized the following two limitations where the doctrine was inapplicable: (i) where the accused product or process was already known at the time of the filing of the application for the patent or could have been easily derived from the technology known at the time of filing of the application for the patent by a person skilled in the art; or (ii) the substituted element of the accused product or process was intentionally excluded from the claims of the patent during patent prosecution.
There is one thing for practitioners to bear in mind: The Supreme Court in Korea did not address the time point for comparing elements. Given the fact that the Japanese Supreme Court has determined the time point in the Ball Spline case as the time when the act of infringement occurred and that the draft for patent law treaty (PLT) prepared by WIPO also stipulates that the time of committing infringement must be considered as the time point, many people accuse the Supreme Court for deliberately omitting the stipulation on the time point of the doctrine of equivalents in Korea.
If the time point for deciding equivalency is set as the time of committing the act of infringement, the scope of equivalents may be broad, and, as a result, the patent will have a broader scope than the one at the time of submitting an application. Furthermore, given the considerable gap between the level of Korean technologies and those of the U.S. and Japan, it is a widespread belief that the Supreme Court did not address the issue of time point in the doctrine of equivalents intentionally in order to give judiciary discretion to protecting domestic industries.
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4. Prior Art Exclusion from Patent Right Scope
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The Korean legal system stipulates that invalidity issues and infringement issues must be handled through separate routes. Furthermore, once a patent is registered after examination, it is presumed to be valid unless it is invalidated through an invalidation trial. But in spite of this general principle, the scope of a patent right cannot be admitted if the patented invention lacks novelty.
It is a well-established principle in the Korean patent law that courts refuse to recognize any scope of a patent right when the patented invention is the same as the prior art or known technology. Readers should bear in mind, however, that this does not mean a defendant is allowed to submit invalidity defense in an infringement suit.
The Supreme Court has expressed its firm position that when a patented invention is novel and differentiated from the prior art, courts may not deny the scope of a patent even if the patented invention lacks inventive step over the prior art and therefore shall be invalidated eventually. Furthermore, the Supreme Court has confirmed that courts may not invalidate a patent based on the lack of novelty until trial decision to invalidate the patent has been finalized. The reason being, it is usually difficult to decide whether an invention is obvious over the prior art or not in determining the "non-obviousness" requirement. Thus, a careful and considerable examination is required when determining its validity for the reason of lack of inventive step. Given such differences between novelty and non-obviousness, the Supreme Court does not deny the scope of a patent based on the lack of non-obviousness.
Meanwhile, there is a complicating issue involving criminal actions in that the criminal law has fundamentally different principles from the civil law. One of the most fundamental aspects of the criminal law is to protect human rights. For example, if courts punish someone for infringing a patent that lacks inventive step over the prior art and thus is doomed to be invalidated, it will run counter to the fundamental principle of the criminal law. Especially so given the fact that it takes about 3-5 years to reach the final decision on invalidation trial. Thus, punishing a person for infringing such patent right would be unacceptable and the above rationale of the Supreme Court's decisions may not apply to criminal cases. In contrast, as far as a criminal action is concerned, a patent should be deemed unenforceable if an invention does not meet non-obviousness requirement.
In reality, the accused persons tend to misuse the above rationale and always assert that a patent right is invalid because it lacks non-obviousness. Therefore, drawing the distinction between novelty and non-obviousness is extremely important. Nonetheless, details on this issue have not yet been settled in Korea as follows.
Theoretically, novelty is a question of whether or not an identical invention exists in a single document. It is impossible to deny novelty by using a couple of publications. Contrary to the above theory, however, the Supreme Court's decisions are that novelty and inventiveness are so correlated to each other that there is no clear distinction between them, and thus it is possible to deny the novelty of the patented invention when it is similar to the prior art even if it is not exactly the same as a known invention. As readers may guess, infringers tend to insist that there is no novelty in patented inventions.
This approach allows courts for a broader discretion in determining the enforceability of a patent even though it would cause many problems in terms of predictability in determining patent infringement. If a patented invention is highly likely to become invalidated, courts assume that the patented invention is no more than a prior art or known technology, and may conclude that the patent lacks novelty and deny the scope of the patent right. Since the Supreme Court's rationale entails a high possibility of creating uncertainty or unpredictability in patent infringement actions, however, I believe, differentiating novelty from non-obviousness should be largely reconsidered.
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5. Freedom of Known Technology
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An alleged infringer may assert that his invention belongs to known technology and that he is entitled to use it without limitation. Although this kind of defense is similar to the one already mentioned above, where the argument is that a patented invention is nothing more than a prior art or known technology and therefore no infringement of a patent right has occurred, there is a fundamental difference between the two types of defense. The difference lies in the assertion of the non-obviousness of the invention in question. Contrary to the foregoing defense, when the alleged product or process in question is not novel or obvious over the prior art, a person cannot be charged with infringement of a patent right. In face, the Supreme Court has ruled that if an invention currently practiced by a defendant is identical or similar to a prior art or known technology, there is no infringement.
The Patent Court upholds the above rationale. It says that where the invention used by the alleged infringer is the same as or similar to a known technology, the invention is out of the scope of the patent. In other words, where the alleged invention lacks novelty or inventive step over a known technology, any act of using the alleged invention cannot constitute a patent infringement.
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6. Prosecution History Estoppels
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It is a well-established principle that patentees cannot regain their rights based on the doctrine of equivalents to any elements that were abandoned through amendment during prosecution. Courts have consistently rejected patentee's assertion that the invention with an equivalent element was out of the scope of a patent right when the element was excluded through amendment in order to secure novelty and non-obviousness in response to the examiner's rejection. However, the Patent Court has said the prosecution estoppels may not apply if amendment is not performed to resolve the violation of the specification description requirement irrespective of novelty and non-obviousness.
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7. Contributory Infringement
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There are two types of patent infringements under the Korean Patent Law-direct infringement and indirect infringement. For example, if a person sells a product by infringing a patent, he may be liable to an infringement under the Article 127 of the Korean Patent Act. This is possible only when the infringer cannot use the product for purposes other than direct infringement.
According to the Supreme Court, a patentee must prove that the alleged product is used only for practicing the patented invention in order to seek remedies from an infringer based on contributory infringement.
Unlike the U.S. Patent Law, the Korean Patent Act does not include any provisions on the "act to induce an infringement." Therefore, inducement does not fall under indirect infringement stipulations of the Patent Act. However, if a person induces someone to infringe a patent that belongs to a third party, he will probably be held accountable for torts in accordance with the Civil Law rather than the Patent Law.
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Damage Compensation
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1. Overview
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IP infringement is a tort. When someone infringes an IP right willfully or with negligence, the IP right holder is entitled to claim damages under the Civil Law. Generally, it is difficult to prove IP infringement because IP is an intangible asset. It is even more so difficult to prove the amount of damages that the infringer caused to the right holder. This is why the laws on IP include several special provisions in favor of right holders. For example, the Patent Act has provisions to presume negligence of an infringer, to presume a process of new material and to presume estimation of damages.
In practice, as the negligence of an infringer is presumed upon finding infringement of IP, it is sufficient for a right holder to prove an infringement as a prerequisite for damage claim. However, the right holder must prove the actual amount of damage as well, which in itself is a difficult task. The difficulty stems from the fact that most types of evidence belong only to infringers while the right holder cannot access the evidence. Considering this, the Korean Patent Act has recently adopted a new provision on proving and estimating damages. The new provision-Article 128, Paragraph 1-is expected to have a significant impact on patent practice.
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2. Lost Profit
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Lost profits are a sum of profits that a patentee would have gained unless his patent has been infringed. In the case of claiming damages of patent infringement, it is reasonable to compensate lost profits. But it is not easy to calculate lost profits. Therefore, the Patent Act, Article 128, Paragraph 1, prescribes in a special clause with a guidance on how to calculate them; a patentee can claim his damages based on computation of his lost profit by multiplying the patentee's profit per product unit by the total number of product units that could be sold but for infringement. The number of products shall be limited within the patentee's manufacturing capacity.
The total amount of damages is correlated with profit per unit. If incremental profit, also known as marginal profit or contributory profit, is used for calculating damages, the total amount would be large. Incremental profit is the profit that a patentee could have earned if he sold just one more patented product. Based on the incremental profit, the patentee may receive the maximum amount of money he could have gained through the use of his patent.
The Seoul District Court, Southern Branch, has allowed a patentee to claim damage compensation that was calculated based on the Article 128, Paragraph 1, in the spring of 2003. In that decision, the patentee was awarded with hundreds of billions of won in damages, the largest sum of money granted as a damage claim in the history of Korean IP. The case is now pending in the high court and the dispute on the amount of damage compensation and the consequences of the case is drawing public attention. Although it is a judgment coming from the lower court, there are possibilities that other courts may rely on this decision as precedent in the future. After all, it was the first case that has applied Article 128, paragraph 1, of the Patent Act.
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3. Infringer's Profit
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According to the Patent Act, Article 128, Paragraph 2, it is possible for patentees to seek their damages in the amount of infringers' profits. In this case, infringers may defend themselves by proving that their actual profit is nothing or small. Again, there have been debates on what the "infringer's profit" means. Unlike the profit stipulated in Article 128, Paragraph 1, the infringer's profit is currently translated as actual profit, which also means the infringer's net income
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4. Reasonable Royalty
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A patentee is entitled to gain reasonable royalty as a minimum amount of damage compensation from an infringer. The reasonable royalty is determined on the hypothesis that the patentee and the infringer had entered into a non-exclusive license regarding the patent. The provision provides the patentee with a minimum damage, but many practitioners have criticized it because the infringer cannot be in a worse position than other licensees, (I'm not sure what this sentence means, Mr. Kim.) and thus may induce competitors to infringe a patent rather than to enter a license. The reasonable royalty is determined based on the rate of other existing license contracts, and the established customs of the commerce field that the patent is pertained to.
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Criminal Action
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1. Willful Infringement
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In civil actions, whether or not one infringes an IP right does not make any difference. However, in order to bring the infringer to criminal liability, the infringer must have intent to infringe an IP right. Even though the Trademark Act presumes the intent of an infringer to infringe, it is widely accepted that the presumption of a trademark infringement shall not be established for criminal prosecution without actual evidence
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2. Accusing Infringers
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IP is, in essence, a personal property. Any infringement of an IP is a crime committed on personal property. To prosecute an IP infringer as a criminal, an accusation by the right holder is required. However, this is different in case of trademark infringement because it involves public interest and an infringer of a trademark right may be prosecuted without an accusation from the right holder.
According to the Criminal Procedure, the right holder must accuse an infringer within 6 months from the date of learning about the infringement and the criminal activity. Since each conduce of IP infringement constitutes a separate crime for the infringement, IP owner can accuse the infringer within 6 months from the last infringement activity. An accusation against the infringer may also be effective to the corporation he works in as a vicarious liability.
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3. Special Considerations in Utility Model Right Infringements
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The Utility Model Act, Article 44, stipulates that holders of utility model rights cannot exercise their rights unless they obtain a decision on certificate of validity for the utility model right in question through examination and present it to an infringer. This is because utility models are registered without substantial examination for the subject matter. Thus, an infringement does not occur immediately unless the right holder obtains a certificate of validity through substantial examination. Also, the right holder cannot accuse the infringer unless the latter uses a registered utility model. If an infringement lacks those prerequisites, it may be dismissed or rejected as unqualified to action.
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4. Vicarious Liability
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IP laws in Korea stipulate that the court can punish not only a person who commits an infringement but also the legal entity he belongs to by imposing a fine. A separate accusation against the legal entity is unnecessary because it is not a separate crime committed by the infringer. The Supreme Court has ruled that even when a patentee files a lawsuit against an individual only, the legal entity he belongs to may be punished without a request from the patentee based on the principle that the legal entity must be liable for the infringement committed by its employee.
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5. Punishment of Contributory Infringer
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There are two types of patent infringements under the Korean Patent Law-direct infringement and indirect infringement. Indirect infringement is the infringement under the Patent Act, Article 127. However, practice and theory prove that the provision is just a special provision to protect patentees and that there is no intention of criminal punishment to any indirect infringers. Therefore, an IP owner may not accuse the contributory infringer based on the above provision. If the infringement exists and the infringer acts aggressively knowing that his action constitutes an infringement, however, he may be punished as an instigator or an abettor since the activity is regarded different from and beyond the contributory infringement.
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2006 Copyright Kasan IP & Law Firm. All rights reserved. / CEO : Kook-Hyun Kim, Dong-Jin Kim
6F Youngpoong Bldg., 142, Nonhyun-Dong, Gangnam-Gu, Seoul, Korea
Tel : 82-2-501-6771 / Fax : 82-2-501-6627
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