Lee International

The Korean Intellectual Property High Court (IPHC)’s decision issued on October 31, 2024 (Case No. 2023 Na 11276) is attracted significant attention as the first IPHC ruling to award punitive damages for willful patent infringement.  This decision is expected to serve as an important precedent and help shape the criteria for determining punitive damages in future cases.

Punitive damages for willful patent infringement were introduced through the amendments to the Korean Patent Act on January 8, 2019 (effective July 9, 2019), with addition of Articles 128(8) and 128(9).  Under these provisions, courts may award up to three times the actual damages in cases of willful infringement.  In this case, the Court made three determinations:

First, the Court held that even if the acts of infringement spanned the effective date of the revised Patent Act (July 9, 2019), the provisions for punitive damages could still be applied to the portion of the infringement that occurred after that date.

Second, with respect to the definition and criteria of “willfulness,” the Court held that willfulness is established if the infringer continues the infringing acts with an awareness of the possibility that such acts may constitute patent infringement.  The Court further clarified that “intent” includes not only direct intent but also conditional intent – where the infringer recognizes the risk of infringement and nonetheless accepts that risk.