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| PATENT |
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| Draft Amendment Regarding 12-Month Grace Period and Divisional Practice |
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| Recently proposed amendments to the Patent Act make two meaningful changes to Korean patent prosecution procedures by reducing procedural requirements for obtaining the grace period for public disclosures and by extending the deadline for filing divisional applications. The Korean legislature is considering the proposed amendments, and if enacted, the measures will take effect sometime in 2015.
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| Final Draft of Pharmaceutical Affairs Act Legislation for the Korean Patent-Regulatory Approval Linkage System Submitted to the National Assembly |
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| The Ministry of Food and Drug Safety announced the first draft of the Pharmaceutical Affairs Act legislation on March 21, 2014, the revised second draft on July 25, 2014, and then submitted the final draft to the National Assembly on October 22, 2014 to fully implement the linkage system. The draft legislation includes revised provisions regarding the current patent listing and generic notice systems, and new provisions regarding the stay mechanism and generic exclusivity. Although the Korean linkage system is based on the US Hatch-Waxman Act, the final draft legislation contains significant differences from the US system.
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| The Korean Supreme Court Holds that Any Owner of a Jointly-owned Patent May Force Dissolution of the Patent Through Auction Sale |
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| The Korean Supreme Court recently applied general principles regarding the dissolution of jointly-owned property to order that a jointly-owned patent, for which one co-owner sought dissolution, be sold at auction to allow the sales proceeds to be distributed among the co-owners according to their respective shares in the patent.
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| Korean Courts Refuse Correction to Remove New Matter Introduced During Prosecution |
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| The Korean Patent Court recently denied a petition for correction to remove new matter introduced during prosecution of the patent application. Specifically, the petition was rejected for not falling within one of the acceptable corrections permitted under the Patent Act.
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| Official Fees Proposed Relating to Liberalized Use of Original Foreign Language Specification |
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| Back in June of this year, President Park signed into law the Amendments to the Korean Patent Act to better harmonize Korea's patent procedures with other member states under the Patent Law Treaty. Most of the changes in the Amendments will go into effect on January 1, 2015. Although the fee changes associated with the Amendments have not been finalized yet, a number of relevant fee changes are worth noting to remind those who file in Korea that they are expected to go into effect soon.
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| TRADEMARK & DESIGN |
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| Landmark Decision Puts the Freeze on Copying Ice Cream Shop's Trade Dress |
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| In the first South Korean court ruling of its kind, the Seoul Central District Court recognized that a shop's general appearance and decorative elements can be protectable trade dress under the Unfair Competition Prevention and Trade Secrets Act (UCPA). In this case, Kim & Chang successfully represented the operator of a dessert café chain in its lawsuit against the franchisor of a similar chain for unfair competition on the basis that the latter was copying its signature soft ice cream dessert and the unique appearance of its cafés.
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High Court Says Mark Non-Distinctive at Registration Cannot Be Enforced
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| Earlier this spring, the Supreme Court issued its en banc decision in New Balance vs. Unistar, which held that the scope of protection of a registered mark includes any non-distinctive portions of the mark that have acquired secondary meaning. The Seoul High Court recently rendered a decision in a civil infringement action filed by New Balance on the same mark, which highlights the practical limits of the earlier Supreme Court decision.
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Design Infringement Recognized Despite Dissimilar Details
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| The Seoul Central District Court recently found infringement in a design infringement litigation involving cutting board cases, determining that minor differences between the registered and infringing designs did not outweigh the similarity of the designs, and granting an injunction as well as KRW 60 million (approximately USD 60,000) in damages to the plaintiff.
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Patent Court Rejects KIPO's Examination Guidelines for Three Dimensional Trademarks
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| The Korean Intellectual Property Office's ("KIPO's") amended examination guidelines regarding three dimensional trademarks have been controversial ever since they came into effect on March 5, 2012. Prior to the amendment, KIPO would simply evaluate the overall distinctiveness of three dimensional trademarks much like any other trademark. However, KIPO's amended examination guidelines have provided that the distinctiveness of a three dimensional trademark must be determined based only on the three dimensional shape itself, without considering any other elements which may be part of the mark such as symbols, letters, figures, etc. This change has been the subject of much debate, as many in the legal field have argued that the amended examination guidelines are too narrow in scope.
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