8.9.5 Sentencing
The statutory punishment for patent infringement is imprisonment with labor for not more than seven years or a fine not exceeding KRW 100 million. In general, factors to be considered in sentencing include whether the patented invention is actually practiced by the patentee, whether the defendant is in a competitive relationship with the patentee, whether the infringement is literal infringement or infringement under the doctrine of equivalents, the degree of infringement, the degree of damage inflicted on the victim by the infringing act, whether an agreement was reached, and the degree of intent to infringe.
As seen in Section 8.9.3.4, there has been a very limited number of cases where a person has actually been indicted and subjected to a criminal patent lawsuit. Most of these indicted cases were closed by an agreement between the defendant and the victim in criminal proceedings, and guilty decisions were rarely made. Even if a person were to be found guilty, they are, in practice, rarely sentenced to imprisonment; instead, they are mostly sentenced to a fine and probation.
8.9.5.1 Forfeiture and joint penal provision
Any article created by patent infringement or obtained by such infringement can be confiscated or ordered to be delivered to the injured party upon the injured party’s request.194
If a representative of a corporation or an agent, employee or other worker of a corporation or individual commits patent infringement in connection with the business of the corporation or individual, then not only will the offender be punished by a fine, but also the corporation or individual. However, this does not apply where the corporation or individual has not been negligent in giving due attention and supervision concerning the relevant business to prevent such an offense.195