Permanent Injunction
An IP right owner will
seek to enjoin an infringer at the beginning of a lawsuit through preliminary injunction.
The nature of a patent right is the right to exclude others. Once the patent
has been held valid and infringed, the patentee is entitled to the full
enjoyment and protection of the patent right. The infringer shall not be
allowed to continue his infringement.
Under Korean patent law,
when the infringement of a patent is found, a permanent injunction shall be
automatically granted. Only in extraordinary circumstances like patent misuse
or substantial injury to the public interest may a court deny a permanent
injunction.
Preliminary Injunction (PI)
Preliminary injunction is
drastic and extraordinary remedy. Thus, a court allows preliminary injunction
only in extraordinary circumstances. PI may be allowed when the circumstances are
met by showing a reasonable likelihood of success on the merits, the existence
of irreparable harm to the patent owner if a PI is not granted; the balance of
hardship between the patent owner and the infringer. Further, a PI should not
be against the public interest.
PI is often granted to a
patentee in Korea. Under Korean patent law, the validity of a patent and its
enforceability are presumed and further irreparable harm is presumed where
there is reasonable likelihood of success. Therefore, preliminary injunction shall
be granted when the accuser’s infringement is proved.
In contrast, in case a
patentee has not practiced the patented invention within Korea, preliminary
injunction will not be allowed because no irreparable harm is presumed.
Further, in case it is probable that the subject patent will be invalid through
invalidation proceeding, it will be hard for the patentee to obtain PI. Preliminary
injunction may give full and final satisfactory remedy in advance before a main
lawsuit, and can cause significant suffering to the other party. Accordingly, a
PI case shall be carefully decided by a panel of three judges.
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