[Ip-health] Korean Patent Act for CL and P6 Solution

[HS NAM]

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Korean Patent Act
Introduced in the National Assembly on November 26, 2004 by 15
Congressmen
Revised by Industry and Energy Committee in the National Assembly
Passed on May 31, 2005
Effective as of December 1, 2005

Article 106 Expropriation of Patent Right etc.

(1) If a patented invention is necessary for under the following
subparagraphs (i) and (ii) in case of national defense in time of war,
incident or other similar emergency, the Government may expropriate the
patent right, work the patented invention or require a person other
than the Government to work the patented invention:
=09(i) for national defense; and
=09(ii) for non-commercial use for public interest.
(2) Where a patent right is expropriated, the rights to the invention
other than the patent right are
extinguished.
(3) If the Government expropriates a patent right, or the Government or
a person other than the
Government works the patented invention under paragraph (1), the
Government or that person shall pay reasonable remuneration to the
patentee, exclusive licensee or nonexclusive licensee.
(4) Matters necessary for expropriating and working a patent right as
well as remuneration for these acts are prescribed by Presidential
Decree.

Article 107 Adjudication for the Grant of a Nonexclusive License

(1)=09Where a patented invention falls under any of the following
subparagraphs and consultations with the patentee or exclusive licensee
is not possible or no agreement is reached at the consultation, a
person who intends to work the patented invention may request the
Commissioner of the Korean Intellectual Property Office to adjudicate
(referred to as "an adjudication") for the authorization of a
nonexclusive license; however, in the event the working of the patented
invention is for purpose of public non-commercial use and the request
meets the following subparagraph (iv), such authorization may be
requested without consultation with the patentee or exclusive licensee:

(i)=09where the patented invention has not been worked for more than
three consecutive years in the Republic of Korea, except for natural
disasters, unavoidable circumstances or other justifiable reasons
prescribed by Presidential Decree;
(ii)=09where the patented invention has not continuously been worked
commercially or industrially in the Republic of Korea on a substantial
scale during a period of three years or more without justification, or
where the domestic demand for the patented invention has not been
satisfied to an appropriate extent and under reasonable conditions;
(iii)=09where working the patented invention is particularly necessary
for the interests of the public;
(iv)=09where working the patented invention is necessary to remedy a
practice determined to be unfair after the judicial or administrative
process; or
(v)=09where working the patented invention is necessary to export a
pharmaceutical product for the purpose of curing diseases for a number
of patients in importing country.
(2)=09Paragraph (1)(i) and (ii) of this Article does not apply unless a
period of four years has elapsed after the filing date of the
application for the patented invention.
(3)=09In adjudicating the authorization of a nonexclusive license, the
Commissioner of the Korean Intellectual Property Office shall consider
the necessity of each request.
(4)=09In adjudicating the authorization of a nonexclusive license, the
Commissioner of the Korean Intellectual Property Office shall limit:
(i) when the authorization is based on a request under subparagraphs
(1) (i) to (iii), that the use of patented inventions should be
predominantly for the supply of the domestic market; or
(ii) when the authorization is based on a request under subparagraph
(1) (v), that all of the medicine produced under the authorization
shall be exported to the corresponding importing country.
(5)=09In adjudicating the authorization of a nonexclusive license, the
Commissioner of the Korean Intellectual Property Office may take into
account:
(i) when the authorization is based on a request under subparagraph (1)
(iv), the need to amend unfair practices in determining the amount of
remuneration; or
(ii) when the authorization is based on a request under subparagraph
(1) (v), the economic value obtained in the importing country from the
working of the patented invention.
(6)=09For semiconductor technology, a request for adjudication may be
made only in the cases set forth in subparagraph (1) (iii) (only for
public non-commercial use) and (1) (iv).
(7)=09In the event that an adjudication is sought for the purpose of
exporting a pharmaceutical product in accordance with Paragraph 1 (v),
the importing country of such product shall be limited to a country
that has given notice regarding each of the following matters to the
Trade Related Aspect of Intellectual Property Council of the World
Trade Organization, provided that with respect to any country not a
member of the World Trade Organization, an importing country shall mean
a country that has given such notice to the government of Korea and
prescribed in a Presidential Decree.
(i)=09specification of the name and the expected quantity of the
pharmaceutical product needed;
(ii)=09unless the importing country is a country designated as a
least-developed country by the United Nations, an evidence of
confirmation to the effect that that the importing country has
insufficient or no manufacturing capacity to produce such product; and
(iii)=09an evidence of confirmation to the effect that where the
pharmaceutical product has been patented in the importing country, that
the importing country has granted or intends to grant a compulsory
license.
(8)=09The pharmaceutical product referred to in Paragraph 1(vi) means one
of the following:
(i)=09any patented pharmaceutical product;
(ii)=09any pharmaceutical product manufactured through a patented
process;
(iii)=09any patented active ingredient needed for the manufacture of the
pharmaceutical product; and
(iv)=09any diagnostic kits needed for the use of the pharmaceutical
product.
(9)=09Documents to be submitted by a person requesting an adjudication
under this Article and the relevant procedures that apply to such
request shall be set forth in the Presidential Decree.

Article 108 Submission of Response

Where a request for an adjudication has been made, the Commissioner of
the Korean Intellectual Property Office shall transmit a copy of the
written request to the patentee or exclusive licensee mentioned in the
request and to any other persons with a registered right related to the
patent, and shall give them an opportunity to submit a response within
a designated period.

Article 109 Solicitation of Opinion from the Minister of the Relevant
Ministry or the Intellectual Property Rights Dispute Committee

Before adjudicating, the Commissioner of the Korean Intellectual
Property Office may shall solicit an opinion or assistance from the
Minister of the relevant Ministry or the Intellectual Property Rights
Dispute Committee established under Article 29 of the Invention
Promotion Act.

Article 110 Formality of Adjudication

(1)=09An adjudication must be in writing and must state the reasons for
the adjudication.
(2)=09The following matters must be specified in an adjudication under
paragraph (1):
(i)=09the scope and duration of the nonexclusive license;
(ii)=09the remuneration for the license and the method and time of
payment;
(iii)=09packaging or labeling for identifying the pharmaceutical product
from the patented product and a website address on which the matters
set by the adjudication when a request for adjudication is made
pursuant to Article 107, Paragraph (1)(v); and
(iv)=09other obligations required for working the patented invention
under Acts or Conventions.
(3)=09The Commissioner of the Korean Intellectual Property Office shall
make a determination regarding adjudication within six months from the
date on which a request for adjudication is made.
(4)=09In the event that a request for adjudication made pursuant to
Article 107, Paragraph 1(v) falls under Article 107, Paragraphs 7 and 8
and all of the documents specified in Paragraph 9 of such Article have
been submitted with in connection with such request, then the
Commissioner of the Korean Intellectual Property Office shall grant an
adjudication authorizing a nonexclusive license.

Article 111 Transmittal of Certified Copies of Adjudication

(1)=09Where an adjudication is made, the Commissioner of the Korean
Intellectual Property Office shall transmit a certified copy of the
adjudication to the parties and to any other persons with a registered
right related to the patent.
(2)=09Where a certified copy of an adjudication has been transmitted to
the parties under paragraph (1), a consultation on the terms as
specified in the adjudication is deemed to have been held by the
parties.

Article 111 bis (Modification of the Adjudication)

(1)=09The nonexclusive licensee may request a modification to the
adjudication in the event there is a need to change the matters set by
Article 110, Paragraph (2)(iii) by submitting documents that evidence
the cause of such change.
(2)=09Upon such request, the Commissioner of the Korean Intellectual
Property Office may solicit opinions of interested parties as deemed
necessary before authorizing such modification.
(3)=09Article 111 applies mutatis mutandis to paragraph (2) of this
Article.

Article 112 Deposit of Remuneration

Under any of the following circumstances, a party obligated to pay
remuneration under Article 110(2)(ii) shall deposit the remuneration:
(i)=09where the party entitled to receive the remuneration refuses the
remuneration or is unable to receive it;
(ii)=09where an action under Article 190(1) has been brought concerning
the remuneration; or
(iii)=09where the patent right or exclusive license is the subject of a
pledge, unless the pledge has consented.

Article 113 Lapse of Adjudication

Where a person granted an adjudication on an authorization fails to pay
or deposit the remuneration (or the first installment of the payment,
if the payment is to be made periodically or by installments) under
Article 110(2)(ii) by the time the payment is due, the adjudication
loses its effect.

Article 114 Cancellation of an Adjudication

(1)=09Where a person is granted an adjudication on an authorization under
either of the following circumstances, the Commissioner of the Korean
Intellectual Property Office may cancel the adjudication ex officio or
upon the request of any interested party. However, for subparagraph
(ii), such action must protect the lawful interests of the nonexclusive
license:
(i)=09where working the patented invention is not within the purpose of
the adjudication;
(ii)=09where the grounds for adjudicating the authorization of a
nonexclusive license disappear and are considered unlikely to reoccur;
or
(iii)=09where the person who has obtained an adjudication does not follow
the obligations under Article 100, Paragraph (2)(iii) or (iv) without
proper justification
(2)=09Articles 108, 109, 110(1) and 111(1) apply mutatis mutandis to
paragraph (1) of this Article.
(3)=09A nonexclusive license is extinguished upon cancellation of the
ruling under paragraph (1) of this Article.

Article 115 Restriction on Reasons for Objections to an Adjudication

Where a request for an administrative trial has been filed under
Article 3(1) of the Administrative Trial Act or a revocation action has
been brought under the Administration Litigation Act for an
adjudication, the remuneration determined in the adjudication may not
be a basis for objection.

Article 116 Cancellation of a Patent Right

(1)=09Where a patented invention has not been continuously worked in the
Republic of Korea for a period of two years or more from the date of an
adjudication under Article 107(1)(i), the Commissioner of the Korean
Intellectual Property Office may cancel the patent right, ex officio,
or upon the request of any interested party.
(2)=09Articles 108, 109, 110(1) and 111(1) apply mutatis mutandis to
paragraph (1) of this Article.
(3)=09When a patent right under paragraph (1) of this Article is
cancelled, the patent right is extinguished.

Related Provisions to the Compulsory License System

Article 2 Definitions

The definitions of terms used in this Act are as follows:
(i)=09"invention" means the highly advanced creation of a technical idea
using the rules of nature;
(ii)=09"patented invention" means an invention for which a patent has
been granted; and
(iii)=09"working" means any of the following acts:
(a)=09acts of manufacturing, using, assigning, leasing, importing or
offering for assignment or lease (including displaying for assignment
or lease) an invented product;
(b)=09acts of using an invented process; and
(c)=09acts of using, assigning, leasing, importing or offering for
assignment or lease a product manufactured by an invented process for
manufacturing a product, in addition to the acts mentioned in
subparagraph (b).

Article 26 Effects of a Treaty

Where a treaty contains a patent-related provision that differs from
this Act, the treaty prevails.

Article 32 Unpatentable Inventions

Notwithstanding Article 29(1) to (2), an invention likely to contravene
public order or morality or to injure public health may not be
patented.

Article 96 Limitations on a Patent Right

(1)=09The effect of a patent right does not extend to any of the
following subparagraphs:
(i)=09working a patented invention for research or experimental purposes;
(ii)=09vessels, aircraft or vehicles merely passing through the Republic
of Korea, or machinery, instruments, equipment or other accessories
used on the vessels, aircraft or vehicles; or
(iii)=09articles existing in the Republic of Korea when the patent
application was filed.
(2)=09The effects of a patent right for the invention of products used
for diagnosis, therapy, alleviation, medical treatment or prevention of
human disease (referred to as "medicines") that are manufactured by
mixing two or more medicines, or for the invention of processes for
manufacturing medicines by mixing two or more medicines, do not extend
to acts of dispensing medicines under the Pharmaceutical Affairs Act or
to medicines manufactured by such acts.









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