VI. Enhanced Protection of Patentee Criminal Penalty
In Korea, patent infringing activity is punishable as a crime
and the criminal penalty is provided to be up to five (5)
years imprisonment and the criminal fine is up to 50 million
Korean won (about 40 thousands USD). The new law enhanced
the criminal penalty against patent infringement up to seven
(7) years and 100 million Korean won (about 80 thousands USD).
In case of patent infringing activities by a jurisdic person,
the fine is increased up to 300 million Korean won (about
240 thousands USD).(Art. 225, Art 230)
2. Amount of Damages
In a damages suit based on patent infringement, the patentee
has been required to show the amount of damage caused by the
infringing activities of the defendant, which is not easy
at all. To ameliorate the difficulties of showing the amount
of damage, the current Patent Act has a provision to assume
the patent owner's damages is not less than the amount of
infringer's profits as a minimum even when the plaintiff fails
to prove the amount of damage. The Patent Act also provides
that the patent owner may claim the usual amount of patent
license royalty as the damages. Since the Korean legal system
does not know punitive damages, these assumption provisions
were not enough to protect the patent owner.
The new law further ameliorate the patent owner's burden of
showing damages by allowing calculation of damages based on
the number of unit product sold by the infringer and the patentee's
cost accounting. This new provision is a codification of a
case law. (Art. 128(1))
Criminal Penalty
