Lee International

Following the revision of the Korean Patent Act with respect to the provisions for calculating damages for patent infringement, the Korean National Assembly passed a bill to revise the Korean Trademark Act, the Design Protection Act, and the Unfair Competition Prevention and Trade Secret Protection Act to allow a rightful owner to claim damages for the infringer’s sale of infringing products exceeding the rightful owner’s production capacity on December 1, 2020.

Under the pre-revised Acts, no damages may be claimed for infringing products in a quantity exceeding a rightful owner’s capacity to produce its products.  However, according to the revision, a rightful owner is allowed to claim damages even for the infringer’s sale of infringing products exceeding its production capacity and request a reasonable royalty from the infringer.  

• Pre-revised Act: Rightful Owner’s Production Capacity x Profit per Unit Product 

• Revised Act: (Rightful Owner’s Production Capacity x Profit per Unit Product) + (Quantity Exceeding the Capacity x Reasonable Royalty Rate)

The revised provisions for calculating damages with respect to the Korean Patent Act will be effective as of December 10, 2020, and the revisions with respect to the Korean Trademark Act, the Design Protection Act, and the Unfair Competition Prevention and Trade Secret Protection Act will take effect in June 2021. 

Based on these revisions on calculating damages, the protection of intellectual property rights in Korea will be further enhanced along with the previous introduction of the punitive damages (treble damages).