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PATENT
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| Korea Adopts Treble Damages for Patent Infringement and Trade Secret Misappropriation Beginning July 9, 2019 |
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On December 7, 2018, the National Assembly approved proposed amendments to the Patent Act and to the Unfair Competition Prevention and Trade Secret Protection Act (collectively the "Amendments"), which include new provisions for awards of up to treble damages for certain acts of patent infringement or trade secret misappropriation. The Amendments were officially announced on January 8, 2019, and will become effective on July 9, 2019.
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| Korean Supreme Court Rules that PTE Scope Covers Different Salt Forms of the Approved Product |
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On January 17, 2019, the Korean Supreme Court reversed the Patent Court's narrow interpretation of the enforceable scope of the patent term extension (PTE) for the compound patent covering Astellas' Vesicare® product (main ingredient: solifenacin succinate), holding that the scope of the PTE in that case covers the generic company's product, which utilizes a different salt form (fumarate) of solifenacin. This is the first Supreme Court decision in Korea to interpret the effects of a PTE under Article 95 of the Korean Patent Act (KPA).
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| Korean Supreme Court Overrules Lower Tribunal to Recognize that a Patent for a Sustained Release Pharmaceutical Composition Satisfies the Description Requirements |
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The Korean Supreme Court recently overturned the Patent Court's decision to invalidate a Novartis patent for a sustained release formulation invention where the pharmacological data was described based on animal testing for failing to meet description requirements. In its decision, the Supreme Court clarified what kind of data in the specification would be sufficient to satisfy the description requirements for a sustained release formulation invention by applying legal principles regarding description requirements for a product invention.
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| The Supreme Court Affirms that Patent Term Extensions Based on Approvals for Importation Rather Than Manufacturing Are Not Invalid |
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Patent term extensions (PTEs) were first introduced into the Korean Patent Act (KPA) in 1987. However, while the 1987 KPA and its Presidential Decree provided that PTE could be granted based on the approval of a medicinal product for domestic manufacture, it said nothing about whether approval of medicinal products merely for importation was a valid basis for PTE. The KPA Presidential Decree issued in 2000 expressly provided that for patents filed after 2000, importation approvals would be a valid basis for PTE, but it has long been unresolved in Korea whether PTE requests based on approvals for importation for patents filed between 1987 and 2000 are acceptable.
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| KIPO and CNIPA Launch Collaborative Search Pilot Program (CSP) |
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A collaborative search pilot program (CSP) between the Korean Intellectual Property Office (KIPO) and the China National Intellectual Property Administration (CNIPA) was launched on January 1, 2019, which is scheduled to continue for a trial period of two years.
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TRADEMARK, DESIGN, COPYRIGHT & UNFAIR COMPETITION
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| Expanded Authority of Special Judicial Police to Conduct Criminal Investigations and Raids |
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Within the Korean Intellectual Property Office (KIPO), the Special Judicial Police (SJP) has the authority to conduct criminal investigations and raids in connection with certain violations of IP rights. Under the current law, the SJP is only authorized to conduct such investigations and raids in connection with trademark infringement and consumer confusion under the Unfair Competition Prevention and Trade Secret Protection Act (UCPA).
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KIPO Amends Trademark Examination Guidelines
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The Korean Intellectual Property Office (KIPO) recently amended its trademark examination guidelines, effective as of January 1, 2019.
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Recent Amendments to Korea Customs Service Guidelines for IP Rights Protection
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The amended Korea Customs Guidelines for Import and Export Customs Clearance Procedures for Intellectual Property Rights went into effect on January 21, 2019.
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For Korean Design Applications, Priority Claims to U.S. Applications Now Easier to File, and Vice-Versa
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Prior to September 2017, in order for a Korean design application to claim priority to an earlier foreign application, it was required to submit a priority document certified by the government of the foreign country.
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Changes as to Class Identifications of Goods/Services in Korea Beginning January 1, 2019
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The Korean Intellectual Property Office (KIPO)'s Notification No. 30 titled "Notification on Descriptions of Goods/Services and Identification of Classes" was revised on December 13, 2018 to change, delete, and/or add a number of class identifications, goods/services similarity codes, and descriptions of various designated goods/services. These changes appear to address various mistakes that have occurred in examinations in the past year, to respond to defect notifications relating to Madrid Protocol cases in 2018, and to reflect the results of the 28th Nice Meeting.
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Supreme Court Holds that "Temporary Reproduction" Exception to Copyright Infringement Does Not Protect Intentional Violation of Concurrent Use-Based Licenses
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In a recent case involving the use of a third-party software tool to exceed the restrictions of a "concurrent use-based" license on a different software CAD program, the Supreme Court held that the maker of the software tool at issue (Hanall Technology) was liable for copyright infringement, rejecting Hanall's defense that the software tool merely created "temporary reproductions" of software that were excepted from copyright infringement.
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