Controlling Patent Abuse in Korea

Controlling patent abuse should be discussed along different types of remedies. Along these lines, capability to produce will serve for the lost profit claims, and possibility of utilization will play a role in reasonable royalty claims. With regard to provisional injunction claim, which occupies most patent abuse cases, ‘avoidance of a significant damage, or preventing an imminent danger’ requirement should be interpreted strictly. The most troublesome type of patent abuse is normal injunction claim. Recently, Korean Supreme Court issued its landmark decision in a trademark law case. This provides us with a new paradigm of understanding abuse of intellectual property. In addition, Korean Supreme Court’s precedents on Trust Act Art. 7 is also a good basis for controlling patent abuse since these decisions suggest that acquisition of patent for litigation could fall into this provision.Patent abuse is a newly emerging issue in the intellectual property law of Korea. The most effective and proper solution should be sought in the context of the entire Korean legal system.