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| PATENT |
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| Original Drug Maker Obtains First Court Decision in Korea Finding Infringement of Patent for Second Medicinal Use |
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Pfizer successfully enforced its patent covering a secondary use of its Lyrica® product (active ingredient: pregabalin) against 13 generic drug manufacturers in Korea, and was awarded a total of about KRW 2.2 billion (approx. USD 2 million) in damages.
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| Second Korean Supreme Court Decision Upholding Validity of a Selection Invention |
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The Korean Supreme Court recently upheld the validity of a selection invention patent owned by Merck, in the case Merck Patent GmbH and Sharp Corporation v. DIC Corporation. The term "selection invention" in Korea means an invention in which some or all of the constitutional elements are species of a genus concept disclosed in the prior art. Selection inventions are subject to very strict patentability requirements; even after the Korean Supreme Court provided detailed standards regarding the patentability of selection inventions in 2003, there were no cases in Korea upholding the patentability or validity of a selection invention for many years.
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| Pharmaceutical Industry IP Practices in Korea Under Scrutiny Again by the KFTC |
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The Korean Fair Trade Commission (KFTC) recently conducted another intellectual property (IP) survey towards approximately 70 pharmaceutical companies (approximately 40 foreign and 30 domestic), seeking detailed information regarding their major products, patents, and litigation disputes involving IP in Korea.
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| Patent Court Holds that Proof of "Exclusive Use" for Infringement Only Necessary if Other Uses Are First Shown to Exist |
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While there is no such thing as inducement of infringement under Korean patent law, Article 127(1) of the Korean Patent Act (KPA) provides that a party indirectly infringes a product patent by "producing, selling, leasing, importing or offering for selling or leasing a product that is exclusively used for the production of the patented product . . .," similar to contributory infringement law in the U.S. The key issue in Korean indirect infringement cases usually is whether "exclusive use" of the accused product for producing the patented product can be proven.
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| Patent Court Holds Its First Ever Hearing in English |
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Substantial efforts are being made by the Korean Government to turn Korea into an Asian regional IP Hub. The most recent effort involves creating an International IP Hub Court, a specialized court panel within the Patent Court which will decide patent-related appeals in English.
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| Income Tax Law Amended, Setting Clear Non-Tax Limits for Employee-Inventor Remuneration |
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The Income Tax Law and its Presidential Decree were amended on December 20, 2016 and February 3, 2017, respectively, to set clear guidelines for the tax treatment of employee-inventor remuneration and to define the scope of non-taxation. These amendments apply retroactively to any and all in-service invention remunerations paid beginning January 1, 2017.
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| Changes to Patent Marking Rules |
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Unlike many other jurisdictions where patent marking plays a vital role in preserving a company's rights to recover money damages from an infringer, patent marking is not a requirement for damages in Korea. However, if you choose to mark products, only patent owners and licensees (exclusive or non-exclusive) can mark a product with the relevant patent numbers. Moreover, patent markings are only available for patents relating to (i) a product or (ii) a method of making a product.
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| TRADEMARK & DESIGN |
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| Working with Korean Customs: A Vital and Effective Way to Combat Counterfeiters |
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One of the first lines of defense in preventing the spread of counterfeit and imitation goods is to stop such goods from entering a country at the borders. Accordingly, intellectual property rights owners should always consider using Customs' services as a part of their enforcement programs in Korea.
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| Amendments to the Design Protection Act |
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Several amendments to the Design Protection Act (DPA) went into effect on September 22, 2017.
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Korean Trademark Act's Guidelines for the Designation of Goods and Classification Recently Amended
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One of the Trademark Act regulations, the Guidelines for the Designation of Goods and Classification ("Guidelines"), was amended on June 29, 2017, and the changes became effective on July 5, 2017. The Guidelines set out what designations of goods and services are acceptable to the Korean Intellectual Property Office (KIPO).
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