8.9.3 Investigation
8.9.3.1 Investigators and initiation of investigation
The Criminal Procedure Act amended on January 1, 2021 has excluded violation of the Patent Act from the offenses subject to initiation of investigation by a prosecutor. As a result, the primary investigators of patent infringement in the Republic of Korea were divided into general judicial police officers and special judicial police officers of the KIPO.
At the same time, the provision that required a patentee to file a complaint within six months from the date on which they became aware of the infringer was no longer applicable. Patent infringement was changed from an offense subject to prosecution only upon complaint to an offense not punishable against the victim’s will, and a special judicial police officer may recognize patent infringement if they discover it. However, in practice, patent infringement is brought as a criminal case after the patentee has analyzed whether the infringer’s act constitutes infringement. Therefore, the primary investigation into most patent infringement is still initiated upon a patentee’s complaint.
As described above, a two-track investigation system is in place for criminal patent infringement – by general judicial police officers and special judicial police officers. After the primary investigation by them, the case may be transferred to the prosecutors’ office from each but in different manners. A general judicial police officer transfers the case to the prosecutors’ office if they decide to acknowledge the allegation or, even when they decide not to acknowledge the allegation, if there is an objection by the patentee (Articles 245-5(1) and 245-7(2) of the Criminal Procedure Act). When a special judicial police officer conducts a primary investigation, they express their opinion on whether to acknowledge the allegation and transfer all cases to the prosecution (Article 245-10(5) and (6) of the Criminal Procedure Act).
The prosecution may directly conduct a supplementary investigation into the transferred patent infringement case, request a judicial police officer to conduct the supplementary investigation (Article 197-2(1) of the Criminal Procedure Act) or direct a special judicial police officer to reinvestigate the case (Article 245-10(2) of the Criminal Procedure Act). If the prosecution finds an offense directly related to the transferred offense in its direct supplementary investigation, it may additionally recognize and investigate the offense (Article 4(1)(c) of the Prosecutors’ Office Act).
8.9.3.2 Designation of a focal prosecutors’ office and establishment of a specialized investigation department
Since 2014, the prosecution has been responding to criminal cases that require professional and technical backgrounds by designating focal prosecutors’ offices and establishing specialized departments. In relation to patent offenses, in November 2015, the Daejeon District Prosecutors’ Office, which is situated close to the Patent Court and the KIPO, was designated as a focal prosecutors’ office for patent offenses. In February 2018, the Patent Offense Investigation department was established. In March 2018, the Suwon District Prosecutors’ Office was designated as a focal prosecutors’ office for advanced industry protection. Finally, in February 2019, the Industrial Technology Offense Investigation department was established (its scope of work was expanded when it became the National Defense Business and Industrial Technology Offense Criminal department).
8.9.3.3 Patent investigation advisor system
A patent investigation advisor system is in place under the prosecution to provide focal prosecutors’ offices and specialized investigation departments with technical advice on new patent infringement, trade secret and other such cases. Patent investigation advisors are appointed via two procedures: three patent investigation advisors (experienced patent attorneys) are directly hired by the Supreme Prosecutors’ Office, and six patent investigation advisors are dispatched from the KIPO (Grade IV officials at the KIPO).182 Patent investigation advisors provide advice not only on the cases of the prosecutors’ office to which they belong but also on the cases of other district prosecutors’ offices through transfer.183 However, even if the suspect is investigated by the Daejeon District Prosecutors’ Office (where patent investigation advisors are located) through the transfer procedure, the actual trial is held by the court having territorial jurisdiction over the criminal case (i.e., the court having jurisdiction over the place of domicile or residence of the suspect, the place where the suspect is presently located or the place of offense).
8.9.3.4 Disposition by prosecutor
With respect to transferred cases, a prosecutor directly renders a nonindictment decision if the allegation is not proved or if the authority to indict is not vested. However, for a specialized case transferred to the Daejeon District Prosecutors’ Office, the prosecutor of the Daejeon District Prosecutors’ Office may either directly render a nonindictment decision or, after the necessary investigation at the Daejeon District Prosecutors’ Office, return the case to the prosecutor of the district having territorial jurisdiction over the case for the final disposition. If the prosecutor of the Daejeon District Prosecutors’ Office decides not to indict, the appeal process will be handled by the Daejeon High Prosecutors’ Office.
In 2020, a total of 212 cases were filed with the prosecution in relation to criminal violations of the Patent Act, including patent infringement, accounting for only about 1.1 percent of the 18,943 cases concerning IP-related offenses that year.184 The total number of cases processed in 2020 was 385. Of these 385 cases, indictment decisions were made for only 33 cases; a majority of the remaining cases were closed with “allegation not proved” or “no authority to indict.”185