South Korea
Answer ... Patent litigation in South Korea is mainly governed by the Patent Act and the Civil Procedure Act. The Patent Act applies to the matters stipulated in the Patent Act, ranging from the patentability requirements to evidence collection, damages and injunctions. Many provisions of the Patent Act borrow from the Civil Procedure Act and explicitly state that certain provisions of the Civil Procedure Act are applicable mutatis mutandis.
In infringement suits, the Civil Act is also relevant in filling in the gaps – for example, by providing the legal grounds for restitution of unjust enrichment (Article 741 of the Civil Act). In (patent) revocation suits:
- matters not prescribed in the Patent Act are governed by the Administrative Litigation Act; and
- matters not prescribed in the Administrative Litigation Act are governed by the Civil Procedure Act.
Additionally, the Intellectual Property High Court (IPHC) has adopted the Practice Directions for Revocation Trials and the Practice Directions for Civil Appellate Trials, which provide court rules on legal briefs, oral hearing, witness examination and other procedural matters related to IPHC proceedings.
South Korea
Answer ... South Korea is a signatory to a number of international treaties relevant to patent rights, such as:
- the Patent Cooperation Treaty 1970;
- the Paris Convention for the Protection of Industrial Property 1883;
- the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure 1977;
- the Strasbourg Agreement Concerning the International Patent Classification 1971; and
- the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994.
South Korea is also a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, but not to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.
Overall, duly ratified and promulgated international treaties generally have the same legal effect as domestic statutes in South Korea; while a domestic statute will prevail over an international treaty in case of a conflict.
South Korea
Answer ... South Korea has adopted a concentrated jurisdiction system for lawsuits concerning patents, utility models, designs, trademarks and plant variety rights, to enable consistent, in-depth review and interpretation of the patent laws.
Under Articles 24(2) and (3) of the Civil Procedure Act, lawsuits concerning patents and other listed IP rights fall under the exclusive jurisdiction of six district courts, which all have specialised IP divisions:
- the Seoul Central District Court;
- the Daejeon District Court;
- the Daegu District Court;
- the Busan District Court;
- the Gwangju District Court; and
- the Suwon District Court.
Most patent infringement actions are filed with the Seoul Central District Court, as it has concurrent jurisdiction with the other five district courts. The IPHC has exclusive jurisdiction over appeals from these cases and the Supreme Court is the court of last resort, to hear further appeals from the IPHC.
The concentrated jurisdiction system does not apply to:
- preliminary injunctions; or
- criminal cases concerning patents and other listed IP rights.
Appeals in these cases are heard by the high court with jurisdiction over the location of the competent district court.