[Patent Talk] What It Takes for the K-Discovery System to Take Root

This column by patent attorney Taeyoung Lee of our firm was published in Etoday on December 21, 2020. It discusses the issue of introducing a discovery system, modeled on US discovery, into Korean patent litigation.

[Patent Talk] What It Takes for the K-Discovery System to Take Root

On the 16th, KIPO and the Korea Venture Business Association held a meeting to gather the views of small and venture businesses on introducing a Korean-style evidence collection system. The core of the system is to expand the infringer's obligation to disclose evidence through measures such as submission of document lists, a duty to preserve materials, and examination of evidence by experts. By analogy with the discovery systems in place in the United States and other countries, it has been dubbed the "K-Discovery system."

Some companies support K-Discovery because it would address the one-sided distribution of evidence and benefit SMEs, but the materials, parts and equipment industry is concerned that it would do more harm than good by inviting a flood of patent suits from global conglomerates. I view K-Discovery positively, as it could raise the value of Korean patents in the long run. However, for the K-Discovery system to take root, the following must first be achieved.

First, the patent invalidation rate must fall and damages awards must become realistic. The invalidation rate of Korean patents approaches 40 to 50%, and even when a patent is upheld, the average damages award in patent infringement suits is only KRW 60 million. In other words, half of the patents asserted in litigation are invalidated, and even if you win, little is left after attorney fees. This is a world apart from the average US damages award of KRW 6.5 billion. Fortunately, treble damages for willful infringement were introduced in July last year, and from December this year...

(Please click the link below to read the full column.)

LNB IP Law Firm