An International Guide to
Patent Case Management for Judges

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8.6.2 Venue, jurisdiction and case assignment rules

8.6.2.1 Territorial jurisdiction
8.6.2.1.1 Interpretation of relevant laws

Article 24 of the Civil Procedure Act and Article 28-4 of the Court Organization Act provide territorial jurisdiction over IP rights, following the enforcement of jurisdictional concentration, as follows:

  • Civil Procedure Act:

    Article 24 (Special Forum for Intellectual Property and Other Rights)

    1. (1) A lawsuit concerning an international transaction and an intellectual property right, excluding a patent, utility model, design, trademark, and plant variety rights [hereinafter referred to as “patent and other listed IP rights”] may be brought to a district court in the jurisdictional area of a high court which has jurisdiction over the location of a competent court pursuant to Arts. 2 through 23: Provided, That the district court in the jurisdictional area of Seoul High Court shall be limited to the Seoul Central District Court. <Amended by Act No. 10629, May 19, 2011; Act No. 13521, Dec. 1, 2015>
    2. (2) A lawsuit concerning patent and other listed IP rights shall be under the exclusive jurisdiction of the district court in the jurisdictional area of a high court which has jurisdiction over the location of a competent court pursuant to Arts. 2 through 23: Provided, That the district court in the jurisdictional area of Seoul High Court shall be limited to the Seoul Central District Court. <Newly Inserted by Act No. 13521, Dec. 1, 2015>
    3. (3) Notwithstanding paragraph (2), a party may bring a lawsuit concerning patent and other listed IP rights to the Seoul Central District Court. <Newly Inserted by Act No. 13521, Dec. 1, 2015>

  • Court Organization Act:

    Article 28-4 (Judicial Power)

    The Patent Court shall judge the following cases: <Amended by Act No. 13522, Dec. 1, 2015; Act No. 14033, Feb. 29, 2016>

    1. 1. Cases of first instance provided in Art. 186 (1) of the Patent Act, Art. 33 of the Utility Model Act, Art. 166 (1) of the Design Protection Act, and Art. 162 of the Trademark Act;
    2. 2. Appeals of the cases under Art. 24 (2) and (3) of the Civil Procedure Act;
    3. 3. Cases falling under the jurisdiction of the Patent Court under other Acts.

    [Wholly Amended by Act No. 12886, Dec. 30, 2014].

In sum, lawsuits concerning patent and other listed IP rights fall under the exclusive jurisdiction of the district court that is located where a high court is seated (Article 24(2) of the Civil Procedure Act),101 with concurrent original jurisdiction to the Seoul Central District Court over all lawsuits concerning patent and other listed IP rights (Article 24(3) of the Civil Procedure Act).102 As Article 24 sets forth exclusive jurisdiction, any agreement to the contrary is void, and a court without jurisdiction will not become competent by the party arguing on the merits of the case, waiving the jurisdictional defense.103 Meanwhile, the Patent Court has exclusive jurisdiction over appeals of lawsuits concerning patent and other listed IP rights (Article 28-4(2) of the Court Organization Act). This exclusive jurisdiction is enforceable irrespective of subject matter jurisdiction – that is, regardless of whether it is a small claims case or whether it was heard by a single judge or a panel in the first instance. Therefore, an appeal of a small claims case concerning patent or other listed IP rights falls under the exclusive jurisdiction of the Patent Court, notwithstanding that such an appeal usually goes to an appellate division of a district court in other types of cases.104

Notably, the exclusive jurisdiction provision does not apply to a civil patent case, in a broad sense, so long as the case is considered a “lawsuit concerning IP rights excluding patent and other listed IP rights.”105 For such cases, jurisdiction will be determined in accordance with Articles 2 to 23 of the Civil Procedure Act, with a chance of the special forum under Article 24(1) of that Act. As such, whether a case is considered a “lawsuit concerning patent and other listed IP rights” is critical in determining jurisdiction over civil patent actions. In the sections that follow, the meanings of “patent and other listed IP rights” and “concerning” are explored in further detail.

Exclusive jurisdiction is particularly reserved for lawsuits concerning patent and other listed IP rights because adjudication of these lawsuits often requires expert knowledge and technical understanding. Concentrating the cases to specific courts is an effort toward the appropriate protection of IP rights that allows judges specialized to handle such cases, equipped with appropriate experience and a tailored system, to thoroughly and promptly review these challenging cases.106

By type of lawsuit (i.e., which cases are lawsuits “concerning” patent or other listed IP rights), patent infringement lawsuits are exemplary of those that require expert knowledge or technical understanding. Thus, the cases subject to exclusive jurisdiction include those seeking an injunction against infringement, disposal and destruction, recovery of reputation, and damages. Likewise, claims to transfer or extinguish patent registration due to assignment or termination thereof, claims to establish or extinguish exclusive or nonexclusive license due to license agreement or termination thereof and claims for remuneration from employee invention also fall under this exclusive jurisdiction. It is the same with royalty claims, as they often involve disputes over whether the technology implemented by the defendant is subject to the license agreement, demanding expert knowledge or technical understanding for resolution. In addition, cases seeking confirmation as to the attribution of patent or other listed IP rights are also subject to exclusive jurisdiction, since issues of attribution should be resolved before the above issues.

8.6.2.1.2 Transfer

A court lacking jurisdiction over a lawsuit concerning patent and other listed IP rights should transfer the case to a competent court. A competent court may also decide to transfer a case to another that has jurisdiction under Articles 2 to 23 of the Civil Procedure Act – either ex officio or by granting the request of a party – when the transfer is necessary to avoid significant damage or delay (Article 36(3) of the Civil Procedure Act).

However, the literal interpretation of Article 36(3) of the Civil Procedure Act suggests that it is not applicable to appeals. There has, therefore, been a demand for the insertion of a provision similar to Article 24(3) of the Civil Procedure Act to allow the discretionary transfer to a court of general appellate jurisdiction when significant damage or delay is expected.107

8.6.2.1.3 Preliminary injunction cases

Article 303 of the Civil Execution Act stipulates that “[t]he court having jurisdiction over the merits, or the district court having jurisdiction over the location of disputed subject matter, shall exercise jurisdiction over preliminary injunction trials.” Accordingly, preliminary injunction cases may be brought to any district court having jurisdiction over the location of the disputed subject matter, in addition to the six district courts prescribed in Article 24(2)–(3) of the Civil Procedure Act that award exclusive jurisdiction. However, Article 28-4(ii) of the Court Organization Act only sets forth that the Patent Court will hear “appeals among cases under Article 24(2) and (3) of the Civil Procedure Act,” meaning that the Patent Court is not competent to hear appeals of preliminary injunction cases. Thus, it should be noted that preliminary injunction cases were left out of the jurisdictional concentration. Such appeals go to the high court that is competent to hear the appeal from the district court that handled the first-instance case.

8.6.2.2 Subject matter jurisdiction
8.6.2.2.1 Definition

The Court Organization Act requires that the judicial power of a district court be exercised by a single judge in principle but, exceptionally, allows cases defined in Article 32(1) to be heard by a three-judge panel (Articles 7(4)–(5) and 32(1) of the Court Organization Act). The term “subject matter jurisdiction” under Korean law refers to the allocation of cases of first instance between single judges and three-judge panels in district courts.

8.6.2.2.2 Claims for monetary awards (e.g., compensatory damages)

A claim for monetary awards (e.g., compensatory damages) with the value of the subject of the lawsuit exceeding KRW 500 million is brought to a three-judge panel in the district court, while a claim with the value of the subject being KRW 500 million or less is brought to a single-judge bench.108 The value of the subject of a lawsuit is calculated on the basis of the benefits as claimed by the lawsuit (Article 26(1) of the Civil Procedure Act). If multiple claims are joined in one lawsuit, the value of the subject of the lawsuit is determined by summing the values of all claims (Article 27(1) of the Civil Procedure Act). A case that originally belongs to a single-judge bench may be handled by a panel court upon its decision to take the case (Article 32(1)(i) of the Court Organization Act). On such occasions, the Seoul Central District Court assigns the cases to panel courts via panel decisions, regardless of the value of the subject of the lawsuit.109

8.6.2.2.3 Cases on injunction, registration of transfer and extinguishment of registration

Cases seeking an injunction against patent infringement or the transfer or extinguishment of patent registration are lawsuits over property rights for which the value of the lawsuit cannot be calculated. Such lawsuits fall under the jurisdiction of district court panels.110 Thus, a case seeking an injunction along with damages not exceeding KRW 500 million also goes to a district court panel.

8.6.2.3 Jurisdiction by court level

In civil patent cases, for lawsuits concerning patent and other listed IP rights, the Patent Court has exclusive appellate jurisdiction, irrespective of the subject matter jurisdiction in the first instance (Article 28-4(ii) of the Court Organization Act).

For an appeal of a lawsuit concerning IP rights other than patent and other listed IP rights, judicial power is vested in either a panel of a district court, if the lower court’s decision was rendered by a single judge of the district court (Article 32(2) of the Court Organization Act), or the high court, if the lower court’s decision was rendered by a panel of a district court (Article 28(i) of the Court Organization Act).

The Supreme Court is the court of last resort for all types of civil patent cases.