INTRODUCTION
The current principles and structure of litigation in each country reflect the legal system and economy of that country which, historically, have been in a constant state of change.
Looking at the history of the Korean economy throughout the past half-century,[499] the role of patent litigation in Korea has undergone dramatic changes: while patent law did not work efficiently until the 1980s, the importance of patent protection increased very rapidly in the 1990s and during the 21st century, and accordingly, the volume and quality of patent litigation has increased as well. GNP per capita increased from 100 U.S. dollars in the 1960s to more than 16,000 U.S. dollars in 2007, and export of goods increased from 60 million U.S. dollars to more than 200 billion U.S. dollars throughout that same period.[500] [501] The history of economic development in Korea has clearly displayed changes both in the general structure of domestic indusÂtries and in the role of patent law and litigation. Until the early 1980s, economic development was made possible mostly by labor-intensive industries, which were supplied with a highly educated but low-wage labor force. In the mid- 1980s, however, due especially to labor unrest and sharp wage increases, the pace of economic development slowed down considerably. As labor-intensive and low-tech industries in Korea lost their competitiveness, it became clear that Korea needed technology-intensive industries to maintain its economic devel- opment.3 Although the Patents Act had existed before the 1980s, the imporÂtance of patent protection was only recognized in the mid-1980s and beyond.During the course of the resulting dramatic transformation of patent law and litigation practices, the two-tier litigation system modelled after Continental patent law has been challenged and criticized, and at the same time, American influence on the field of patent law has also appeared.
Parallel to developÂments in the U.S., Korean patent law has adopted university ownership of patents,[502] the doctrine of equivalents,[503] and other pro-patent characteristics.Before going into detail regarding the principles and structure of patent litiÂgation, it would be useful to briefly describe general features of patent litigaÂtion in Korea. Once a patent is issued, a patentee may bring suit against someone who has allegedly engaged in patent infringement. Two procedures are available to obtain legal relief: first, requesting an injunctive remedy through a preliminary injunction action, and secondly, seeking damages or a permanent injunction stemming from claims of patent infringement. Unlike the U.S., patent infringement in Korea is a criminal offense subject to proseÂcution. More specifically, if a patentee brings forth an accusation to the public prosecutor’s office, the prosecutor’s office will file a criminal suit against the alleged patent infringer, and if proven guilty, a person who infringes a patent right or exclusive license can be sentenced to up to seven years imprisonment or up to a fine of 100 million Korean won (Patent Act, Art. 225).
In general, there are two defenses to such a suit: first, the alleged infringer may argue that the patentee’s patent is invalid (â€?invalidity defense’), and secondly, the alleged infringer may argue that even if the patent were valid, the products in question do not actually infringe upon the patent (â€?non-coverage defense’). With regard to the invalidity defense, the Patent Act states that an invalidation trial must convene to determine the validity of a patent (Patent Act, Art. 133). Even if the elements of novelty and inventive step are missing, a registered patent is considered valid; therefore, before the invalidation trial decision is finalized, courts cannot separately find a patent to be invalid throughout the course of infringement proceedings. In this way, Korea’s Patent Act is very different from that of the U.S., where the invalidity defense is allowed within the context of an infringement suit. Regarding the non-coverÂage defense, in addition to arguments that a defendant’s product or service differs from a plaintiff’s patented invention, the Patent Act allows patent infringement defendants to opt for a â€?trial to confirm the scope of a patent right’ to verify that their product/service is outside the scope of an existing patent right. In the following sections, both substantive and procedural issues relating to patent dispute trials will be discussed.
II.