The United States and South Korea concluded a free trade agreement in early April, 2007. Much of the meat of this trade agreement concerned patent laws and applications. Of course, the agreement has yet to be ratified, but when it is a number of different laws will go into effect concerning patents in South Korea. All agreements are scheduled to go into effect on January 1, 2008.
The first clause is entitled Agreement on Patents, and has three main clauses. The text of the agreement follows.
(1) Extension of patent terms for delays in granting.
The term of a patent shall be extended to compensate for delays in granting the patent, which include a delay of "more than four years after filing of the application," or "three years after a request for examination of the application." But delays caused due to actions of the patent applicant are not to be included.
(2) Extension of grace period for novelty bar. The grace period for protecting an inventor in novelty determination has been extended from 6 months to 12 months prior to filing the application.
(3) Cancellation of a patent right for failure in its implementation is no longer available.
The Korean Intellectual Property Office can adjudicate for the authorization of a nonexclusive license (compulsory license) based on non-use for more than 3 years after a patent registration. The patent can be canceled if its compulsory license has not been implemented within two years there from; however, this provision has been rescinded in the revised Patent Act. The second clause is entitled Agreement on Trademark, and has some additions for trademarks to be made in South Korean law. It is rather short.
(1) Recognition of sound and scent marks as trademarks.
(2) Introduction of certification mark system.
(3) Rescindment of requirements for recordation of trademark exclusive licenses. Exclusive right of use becomes effective without recordation of trademark licenses at Korean Intellectual Property Office.
The main meat of the agreement is a lengthy clause called Agreement on Copyright, and extends the near-immortal lifespan of copyrights in the United States to include Korea as well. This has farreaching implications for Korean copyright law.
(1) Extension of protection period (effective after two years of grace period from the effectuation date of this agreement).
The term of copyright protection for a work extends from 50 years to 70 years after the author's death.
(2) Recognition of reproduction right for temporary storage purposes.
(3) Prohibition of the circumvention of technological measures.
Any action that circumvents, without authority, technological measures that control access to protected works is prohibited; however, there will be grounds that allow the discussion to be made on exceptions.
(4) Reinforcement of the author's right against internet service providers (ISP).
The responsibilities are differentiated according to the difference in restrictive authorities against internet infringements.
(5) Prohibition of receiving illegally decoded signals.
Receiving and using illegally decoded satellite and cable signals is prohibited.
(6) The government agencies are required to use legitimate software. The fourth clause is rather short, and refers to Pharmaceuticals. The full text of that section is one sentence, which is that infringement will be assessed prior to approving any generic drugs.
Finally, the fifth and last clause includes the juicy details of Remedies for Infringement of Intellectual Property Rights.
(1) Remedies for infringement.
Against infringement on copyright and trademark right, the right holder may elect between minimum set on legal damages and actual damages.
(2) Intellectual property infringing goods.
Civil procedures will be reinforced by providing authority to judicial authorities to order prohibition on infringing goods from being exported.
(3) No need for formal complaint by a right holder.
Against infringement on copyright, authorities may initiate legal action ex officio with respect to the infringing offenses, without the need for a formal complaint by a right holder.
(4) Notification system for goods suspected for copyright infringement.
A system, such as automatic ban on export of goods and notification to the right holder on suspected copyright infringing goods, will be initiated.
The US copyright and patent system is already rather draconian, and some say too strict. If the Korea-US FTA is ratified before January, expect to see a radical shift in Korean intellectual property law.
