Overview of Basic Structure

Legal System in Korea

There are three tiers of courts in Korea: the District Courts, the High Courts and the Supreme Court. The Supreme Court located in Seoul consists of a Chief Justice and 13 Justices. Korea follows civil law tradition. Accordingly, a decision of the Supreme Court does not have binding authority but since the lower courts follow the Supreme Court’s interpretation of a law, the effect of a Supreme Court decision amounts to a binding force on the lower courts. Neither the jury system nor punitive damage compensation exists in Korea.

The District Courts and its Branch Courts hear the first instance of cases. For example, a patentee must bring a patent infringement lawsuit before a District Court or a Branch Court of a District Court that has jurisdiction over the case. The High Courts are appellate courts. A panel of three judges hears patent infringement cases.

The Patent Court

The Patent Court is the court that specializes in IP, and is located in Daejon which is a city 200 km south of Seoul. The Patent Court is a high court having exclusive jurisdiction over all appeals of the IPT and KIPO. There are 5 panels of 3 judges and 17 technical experts assisting judges of the Patent Court as law clerks. They have different technical expertise, and thus ensure a broad coverage of technology. Further, most of them are former ex-examiners having at least 10 years experience examining patent applications at KIPO.

KIPO and the IPT

The Korean Intellectual Property Office ("KIPO") is located in Daejeon. Within KIPO, the Intellectual Property Tribunal ("IPT"), as Board of Appeal, handles appeals, invalidity proceedings, and proceedings to determine the scope of patent rights. Invalidation Petitions must be brought to the IPT, which has exclusive subject matter jurisdiction for the validity of patents, utility models, industrial designs and trademarks. KIPO has four examination bureaus: Trademarks & Design, Machinery & Metals, Chemistry & Biotechnology and Electric & Electronic.

Bifurcated System

Invalidity must be reviewed by IPT. The district court may not decide invalidity of a patent. Any party interested in the validity of a granted patent may initiate an invalidation proceeding by filing an invalidation petition to the IPT. The invalidation petition may be filed even after the expiration of the subject IP rights. A panel of 3 board examiners reviews the case and may allow oral arguments hearing for both parties.