The number of patent applications in Korea has steadily increased in 5 recent years. According to statistics from KIPO, the number of patent applications in 2013 was 204,589 that was 8.6% increase compared to that of 2012. 44,894 new patent applications among them were filed by foreign applicants. It has increased by 11.7% compared with the numbers during the same period in 2012. We could observe the steady increases in the numbers of patent applications from foreign applicants by in recent 5 years that ranges from 5.8% to 11.7%.
Considering the background of such steady increases, we could observe that many Korean companies became key players in the world's major manufacturers and sellers of smartphones, semiconductors, display panels, TVs, etc. Accordingly manufacturers of parts and raw materials have critical interests in Korean market, too. Naturally they need IP protection about their businesses in Korea and have filed more patent applications in Korea.
Amendments to the Korean Patent Act from January 1, 2015
1. An applicant may file an English specification without the Korean translation
An applicant may file a provisional application in English without the Korean translation in order to obtain a patent filing number and date in Korea. The description of an invention in English does not have to be a formal patent specification. A simple literature about an invention should be sufficient if it describe all elements of an invention clearly. Under the current law, an applicant may file a provisional application in Korean without claims. Furthermore, an applicant may file a formal application in English without the Korean translation in order to obtain a patent filing number and date in Korea. Within 14 months from the earliest priority date, an applicant must file the Korean translation and claims.
2. 32 months deadline for submitting the Korean translation for national entry of PCT application
Under the current Korean law, a PCT applicant must enter a Korean national phase of a PCT application through filing documents for entering a Korean national phase of a PCT application that includes the Korean translation of a PCT specification. However, under the new law, a PCT applicant may request a one-month extension of time for submitting the Korean translation and thus may submit the Korean translation within 32 months from the earliest priority date. But, an applicant may not extend the 31 months deadline for national entry of a PCT application in Korea.
3. An applicant may correct Korean translation errors based on an original foreign language specification
Under the current Korean law, any amendment beyond the scope of the Korean translation filed shall be regarded as new matter even though the amendment has been based in the original specification in foreign language. Accordingly it is critical once there is any translational error in the Korean translation. The revised new law allows that an applicant may correct any translational errors based on the original foreign language specification and the PCT specification in foreign language.
Criminal Sanctions on Trade Secret Infringements in Korea
Trade secret Infringers may be prosecuted as criminals in addition to civil litigations. The Korean UCPA stipulates that anyone who illegally acquires trade secret of others or uses or discloses to a third party a misappropriated trade secret may be imprisoned up to ten (10) years or fined in an amount of KRW50,000,000 (approximately US$50,000) or two (2) to ten (10) times of the monetary gains. The fine may amount to the 10 times of the value of the stolen trade secret. In Hyundai Motors case, two former engineers were punished to 3.5 years imprison and US$3 million fines respectively.
Further, the Korean Supreme Court held that the act of divulging trade secret to the competitor for the purpose of gaining economic benefit by former employees shall be punished as criminal violation of the fiduciary duty under the Criminal Code. Besides UCPA, trade secrets misappropriations may be prosecuted under the criminal code, too.
In addition to criminal sanction on individuals, companies may be punished by fine that is KRW50,000,000 (approximately US$50,000) or two (2) to ten (10) times of the value of the stolen trade secrets or monetary gains of infringers.
Further, the Korean Supreme Court held that the act of divulging trade secret to the competitor for the purpose of gaining economic benefit by former employees shall be punished as criminal violation of the fiduciary duty under the Criminal Code. Besides UCPA, trade secrets misappropriations may be prosecuted under the criminal code, too.
In addition to criminal sanction on individuals, companies may be punished by fine that is KRW50,000,000 (approximately US$50,000) or two (2) to ten (10) times of the value of the stolen trade secrets or monetary gains of infringers.
Criminal Procedure of South Korea
1. Initiation of Investigation
Investigation is initiated upon discovery of the possibility that a crime may have been committed. The ultimate responsibility in all investigative procedures is in the hands of the prosecutor. Based on collected evidences, the prosecutor assess the validity of the judgment that a crime has occurred, and take appropriate measures upon this ascertainment.
2. Booking, Arrest & Detention
Booking denotes the formation of a criminal case after initiation. An individual subject to investigation becomes a criminal suspect once a criminal charge has been determined by the investigation agency. In principle, prosecutors or police officers must obtain a warrant issued by a judge to arrest a suspect; however, there exist certain exceptions to these warrant requirements in cases that necessitate "Emergency Arrest" and "Arrest of Flagrant Offender". The prosecutor may detain the arrested suspect with a warrant of detention issued by the judge upon request by the prosecutor within 48 hours from the time of arrest. A suspect may request a preliminary hearing prior to detention, and an arrested or detained suspect may request a review of legality to the court. Through such process, the suspect may be released.
3. Prosecution
4. Trial and Sentencing
A judge hears trial upon motions filed by prosecutors. Sentencing occurs when defendants are found guilty of their charges. The punishment may include death penalty, imprisonment and fine, etc.
Trade Secret Protection in South Korea
1. What is Trade Secret under Korean law?
“Trade secret” under Article 2.2 of the UCPA of Korea means technical or business information that: (i) has not been publicly disclosed, (ii) has an independent economic value, and (iii) has been maintained as secret with substantial effort. The clause of article 2.2 of the UCPA is : "trade secret" means information, including a production method, sale method, useful technical or business information for business activity, that is not known publicly, is the subject of considerable effort to maintain its secrecy and has independent economic value.
2. What is misappropriation or infringement of trade secret under Korean law?
Article 2.3 of the UCPA further stipulates that any of the following acts shall constitute an act of trade secret misappropriation:
(i) acquisition of a trade secret through theft, deception, coercion or other improper means (hereinafter referred to as “act of improper acquisition”), use or disclosure, to a third party, of the acquired trade secret (including disclosure thereof to a third party while maintaining its secrecy);
(ii) acquisition of a trade secret, with the knowledge that an act of improper acquisition was involved with respect to the trade secret or failing to know thereof due to gross negligence, use or disclosure thereof to a third party;
(iii) use or disclosure, to a third party, of a trade secret, with the knowledge gained subsequent to its acquisition that an act of improper acquisition was involved with respect to the trade secret or failing to know thereof due to gross negligence;
(iv) use or disclosure, to a third party, of a trade secret by a person who has a fiduciary duty not to use or divulge the trade secret under a contractual relationship and the like;
(v) acquisition, use or disclosure, to a third party, of a trade secret with the knowledge that the trade secret was disclosed in violation of the fiduciary duty referred to in item (iv) above or failing to know thereof due to gross negligence; and
(vi) use or disclosure, to a third party, of an acquired trade secret with the knowledge gained subsequent to its acquisition that the trade secret was disclosed in violation of the fiduciary duty referred to in item (iv) above or failing to know thereof due to gross negligence.
We can assume that the meaning or scope of misappropriation under Korean law is almost the same as those of misappropriation under American UTSA. Namely, the key points of misappropriation under Korean law include (1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) disclosure or use of a trade secret of another Without express or implied consent by a person who used improper means to acquire Knowledge of the trade secret; or (3) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was (i) derived from a person who had utilized improper means to acquire it; (ii) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) derived from a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (4) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
3. Remedies for Trade Secret Misappropriation
(1) Injunctive Relief
(2) Damages
A. Actual loss (including lost profits where applicable),
B. Unjust enrichment, and/or
C. Reasonable royalties.
(3) Criminal Sanctions
(2) Damages
A. Actual loss (including lost profits where applicable),
B. Unjust enrichment, and/or
C. Reasonable royalties.
(3) Criminal Sanctions