Lee International

Provided below are some revisions to the determination of the recoverable trial costs in intellectual property rights.   

In principle, as a losing party bears trial costs, a prevailing party can request the losing party for reimbursement of the trial costs including official fees for requesting a trial, patent attorney fees and other expenses such as travel expenses.  However, the claimable patent attorney fees are limited up to the official fees, and other claimable expenses such as travel expenses are actually insignificant.  For this reason, an actual claimable reimbursement was generally about twice the official fees which would be hundreds of thousands of KRW (hundreds of USD), and therefore, it was uncommon to request for reimbursement of the trial costs in practice.  However, with the recent revision, the recoverable amount of trial costs has become more reasonable.      

Even if a party that has committed an unfair act prevails, the party shall pay up to 30 times more than before the revision, as trial costs.

A party that has committed an unfair act shall bear the trial costs regardless of the outcome in a trial (applicable to trials filed on or after January 25, 2022). In particular, it has become possible to claim actual attorney fees up to a maximum of 7.4 millions KRW (7,400 USD) to a party having committed an unfair act.  This amount would be up to 30 times higher than a conventional claimable amount of hundreds of thousands of KRW.   

Fees for obtaining evidence are also added to the claimable trial costs.  

Fees for obtaining evidence are now included in the claimable trial costs by a prevailing party (applicable to trials filed on or after June 1, 2022).   

As such, the claimable trial costs include fees for obtaining evidence, including expert opinion and onsite inspection, which are limited to a maximum amount of 6 millions KRW (6,000 USD), in addition to the above-discussed official fees, patent attorney fees and other expenses.   

The reduction or exemption of official fees is not taken into account when calculating patent attorney fees.  

Currently, the claimable patent attorney fees are limited up to the amount of the official fees for requesting a trial.  Thus, when there was reduction or exemption from the official fees, the claimable patent attorney fees were further reduced.  

With this revision, if there is reduction or exemption from the official fees, it is now possible to claim the patent attorney fees within the normal official fees before the reduction or exemption (applicable to trials filed on or after June 1, 2022).