8.3 Judicial institutions
8.3.1 Judicial administration
8.3.1.1 Overview of Korean courts
The Republic of Korea has a three-level court system consisting of district courts, high courts and the Supreme Court. By type, there is the Supreme Court, high courts, district courts, the Patent Court, family courts, the administrative court and the bankruptcy court. Among the courts exercising specialized functions, the Patent Court is at the level of the high courts, while the family, administrative and bankruptcy courts are at the level of district courts. By level and region, courts are classified as follows: the Supreme Court is the court of last resort, located in Seoul; high courts handle appeals filed against judgments rendered by panels of district courts and are located in the six major cities, Seoul, Daejeon, Daegu, Busan, Gwangju and Suwon; and there are 18 district courts across the country, which hear cases of first instance (by a single judge or a panel) as well as appeals filed against decisions rendered by single judges. District courts may have branch courts within their respective jurisdictions. There are currently 42 branch courts nationwide.10
Each trial is presided over by either a single judge or a panel of three judges. The judicial power of a high court, the Patent Court or an administrative court must be exercised by a panel of three judges (Article 7(3) of the Court Organization Act). The judicial power of a district court, family court or bankruptcy court is exercised by a single judge by default. However, certain district court cases are adjudicated by three-judge panels: any civil case where the value of the subject of the lawsuit exceeds KRW 500 million and any criminal case subject to capital punishment or imprisonment, with or without labor, for an indefinite term or for not less than one year in the short term (Article 32(1) of the Court Organization Act; such cases are referred to as “civil panel cases” and “criminal panel cases,” respectively).
Every court case in the Republic of Korea is presided by a judge, and no jury trial system is in place. Some criminal panel cases are eligible for public participation upon the request of the parties.11 However, a public participation trial is different from a jury trial under Anglo-American laws in that the verdict and sentencing opinions that the jurors may offer in a public participation trial do not bind the court.12 As explained later in Section 8.9.2.2., all criminal patent cases are single-judge cases and, therefore, not eligible for public participation. Figure 8.2 shows the judicial structure of the Republic of Korea.
Source: Prepared by authors.
8.3.1.2 Types of patent cases
Patent lawsuits are broadly classified into civil, administrative and criminal lawsuits. Civil patent lawsuits are further divided into cases on the merits and preliminary injunction cases. Merits cases involve infringement;13 the transfer, grant or extinguishment of patent rights; compensation for employee inventions; royalty payments; and so on. Administrative patent lawsuits are generally cases seeking the revocation of IPTAB decisions such as decisions upholding the examiner’s rejection to grant a patent or decisions ruling that a patent is invalid. Criminal patent lawsuits involve the acts punishable under Chapter XII of the Patent Act.14
8.3.1.3 Enforcement of concentrated jurisdiction over patent cases
Until 2015, the Patent Court had exclusive jurisdiction only over cases seeking the revocation of IPTAB decisions. Civil patent cases, such as infringement suits, like any other civil cases, were heard by district courts nationwide in the first instance and then appealed to the high courts or to the appellate divisions of district courts.15 This bifurcated system sent revocation cases for rejections and invalidations to the Patent Court and sent infringement and other civil cases to general civil courts. This two-track framework left room for contradictory outcomes in the Patent Court and general civil courts over the same patent. A civil court’s attempt to wait for the disposition of the IPTAB on invalidation or of the Patent Court on revocation to prevent inconsistency often led to prolonged dispute resolution.16
In response, the Court Organization Act and Civil Procedure Act were amended to enforce a concentrated jurisdiction system, effective from January 1, 2016, with the original jurisdiction of civil patent cases limited to a number of civil courts, and appeals in patent infringement suits under the exclusive jurisdiction of the Patent Court. District courts located where the high courts were seated were conferred with original and exclusive jurisdiction of civil actions in the first instance concerning patent, utility model, design, trademark and plant variety rights [hereinafter, “patent and other listed IP rights”], with the Seoul Central District Court having concurrent jurisdiction. As for appellate jurisdiction, the exclusive jurisdiction of the Patent Court was enlarged and now covered all civil appeals concerning patent and other listed IP rights, in addition to lawsuits seeking the revocation of IPTAB decisions. Figure 8.3 summarizes the current intellectual property (IP) jurisdiction in the Republic of Korea.
1District Courts with exclusive jurisdiction: Daejeon, Busan, Daegu, Gwangju, Suwon and Seoul Central (concurrent jurisdiction). Source: Judicial Administration Structure for IP Disputes provided by the International IP Law Research Center of the Patent Court, available at www.wipo.int/wipolex/en/judgments/j-admin/kr.html
8.3.1.4 The Patent Court
The Patent Court opened on March 1, 1998, as a specialized court at the high court level, having jurisdiction over the entire country. Article 186(1) of the old Patent Act (prior to its amendment on January 5, 1995, under Law No. 4892) provided that, with regard to administrative patent suits (e.g., a revocation action against government agency decisions upon quasi-judicial trials), a party served with a decision of the Appellate Tribunal could appeal to the Supreme Court only on the ground that the decision was in violation of statute. This framework faced criticism for infringing upon the basic constitutional right of a person to trial by a judge.17 In response, the Supreme Court requested the Constitutional Court, on August 25, 1993, to find the above provision unconstitutional. The Constitutional Court consequently ruled it inconsistent with the Constitution.18
To implement the ruling, the Court Organization Act was amended to incorporate the two-step administrative trial process of the Tribunal and the Appellate Tribunal into one before the newly installed IPTAB. As for the judicial branch, the Patent Court was established at the high court level. Under this new system, lawsuits in objection to IPTAB decisions fell under the exclusive jurisdiction of the Patent Court, and appeals from the Patent Court went to the Supreme Court, allowing for the full adjudication of the factual and legal issues by the judiciary.19
The Patent Court first opened in Seoul but relocated on March 1, 2000, to Daejeon, the home of the KIPO and the Daedeok Science Town, where government-funded research institutes and laboratories of private companies, as well as educational institutions, such as the Korea Advanced Institute of Science and Technology, were concentrated.20 The court shared a building with the Daejeon High Court and the Daejeon District Court at the time of the relocation but later moved to the current Patent Court building on September 1, 2003, in response to the constant rise in the number of IP disputes, preparing itself for broader jurisdiction, more cases and more judges.
The Patent Court consists of the Chief Judge, judges, judicial technical examiners, judicial technical researchers, the International Intellectual Property Law Research Center and the Administration Bureau. The Chief Judge is in charge of the overall management of judicial administrative affairs, leading and supervising court officials, and serves as the presiding judge for trials of the special division.
The Patent Court currently has five general divisions, each consisting of three judges. Cases are randomly assigned to one of the five divisions. However, a special division may be formed – consisting of the Chief Judge and two judges from general divisions – to preside over certain cases: cases that could possibly become important precedent or call for further research, cases that carry great weight and are thus expected to significantly influence society, and cases that lack sufficient precedents for reference but with those of a similar nature pending in several divisions. A case meeting any of these criteria in a general division may be reallocated to the special division.21
Judicial technical examiners and judicial technical researchers provide support for adjudication, focusing on technical issues in the cases assigned to them based on their respective fields of technical expertise. Their roles and responsibilities are explained in greater detail in Section 8.6.7.6.2.
The International Intellectual Property Law Research Center consists of judicial researchers (judges) and nonjudge, full-time researchers. It conducts long-term research projects on major subjects that call for comparative studies as well as ad hoc projects for specific issues in ongoing cases. It also takes charge of the court’s international exchanges and cooperation.
8.3.2 Specialized intellectual property judiciary
8.3.2.1 Specialized patent courts and divisions
In relation to patent trials, the Republic of Korea operates both a specialized court system and a specialized division system. As discussed in Section 8.3.1.4, the Patent Court serves as the specialized patent court of the Republic of Korea. It is at the level of a high court and has jurisdiction over the entire country, exercising exclusive jurisdiction over civil appeals and revocation cases.22
The six district courts that came to have jurisdiction over first-instance civil patent cases after the enforcement of the jurisdictional concentration – namely the Seoul Central District Court, Daejeon District Court, Daegu District Court, Busan District Court, Gwangju District Court and Suwon District Court – all have specialized IP divisions. Preliminary injunctions go to the IP divisions in the case of the Seoul Central District Court, whereas a separate division for preservative dispositions is in charge of preliminary injunctions in the five other district courts.23 For criminal patent cases, there is no separate specialized court or division.
To summarize by case type, civil patent cases are heard by the specialized divisions in the district courts in the first instance and by the specialized court (Patent Court) in the second instance. Administrative patent cases, or revocation cases, go to the Patent Court. In the case of criminal patent cases, no particular specialized court or division is in charge.
8.3.2.2 International divisions
More and more foreign parties are litigating their patent cases in the Republic of Korea. Comprising a third of all patent cases, such cases created a need for better language access for foreign parties. In response, the Patent Court and the Seoul Central District Court established International divisions to handle certain IP cases with the goal of providing equal judicial access to all parties, effective as of June 13, 2018 (Article 62-2 of the Court Organization Act). As a result, parties can now make oral arguments or submit documents in a foreign language in these courts if permission is given to handle the case as an “international case.”
A case may be handled as an international case when a party to the lawsuit is a foreigner or a foreign company, there is a need to examine material evidence in a foreign language, or there are other circumstances that make the case “international” in nature.24 Consent of the adverse party is required. The court may also refuse to permit to proceed as an international case if significant delay is expected.25 Application and consent are made in writing before the first trial date, either in the Seoul Central District Court or in the Patent Court, barring exceptional circumstances.26 The effect of the permission is limited to the level of the court.27
In an international case, parties may make oral arguments in a permitted foreign language or file briefs or exhibits in the foreign language without translation.28 Interpretation is provided by the court on the trial date.29 Due to practical considerations regarding actual demands, the permitted foreign language is currently limited to English under the current Supreme Court regulations, but other languages may also be permitted upon petition by the party.30 Decisions are rendered in Korean, and the decision in Korean is the basis for calculating the appeal period or the effect of the judgment.31 Parties will be given a translation of the decision in the foreign language after the service of the authentic copy of the decision.32 In case of an appeal, the notice of appeal may be filed in the permitted foreign language.33
8.3.2.3 Specialized patent judges
Korean judges rotate between courts. Most judges are assigned to different courts every three to four years and to different roles every one to two years. There are no express requirements to qualify as a judge in the specialized court or division. However, it is understood that securing specialized judges is crucial for the efficient and fair management of patent cases. The Patent Court has thus worked to bring in judges who have majored in science, engineering or IP; judges who have exclusively handled IP matters in other courts; or judges who have served as attorneys or patent attorneys in the field for many years. In addition, it has been making progressive efforts to secure them for longer periods. The term of service of patent court judges tends to be longer than that of general courts.
8.3.3 Judicial education on intellectual property
The Judicial Research and Training Institute offers an annual IP Litigation Training Program for judges who are handling patent cases for the first time and provides an Advanced IP Litigation Training Program every two years on particularly interesting subjects in IP practice. In addition, judges dealing with patent cases also actively share their academic and practical insights through an online community of the judges currently working on or interested in patent cases, practice research committees in the Patent Court, and joint seminars between the Patent Court and the Seoul Central District Court.