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.