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Newsletter | December 2016, Issue 4
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INTELLECTUAL PROPERTY
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Korean Government Proposes Greater Protections for Trade Secret Holders
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The Presidential Council on Intellectual Property and other government entities have been exploring various approaches to address concerns in Korea that the current law has been ineffective in preventing technology theft from small and medium size companies.
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One measure the Korean government is now proposing is to amend the Unfair Competition Prevention and Trade Secret Protection Act (“UCPA”). Specifically, the amendment would broaden protections for trade secret holders by making it easier to show that certain information is a “trade secret,” and by increasing sanctions against trade secret infringers.
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Major Proposed Changes:
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Greater Ease in Qualifying Information as a “Trade Secret”
Under the current UCPA, “reasonable efforts” must be used to maintain the secrecy of information to claim it as a trade secret.
Under the amendment, the definition of a “trade secret” would be revised, so that no showing of “reasonable efforts” is required (i.e., it is sufficient to simply show that information is “kept secret”).
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Introduction of Punitive Damages
Under the amendment, where there is intentional infringement, a court would be allowed to grant compensation for damages in an amount up to 3 times the amount of actual damages.
In calculating the damages, a court would have discretion to consider all relevant circumstances, including: (i) whether the infringer is in a superior position to the trade secret owner; (ii) the infringer's wrongful intent and degree of willfulness; (iii) the duration and number of infringing acts; and (iv) the economic benefits resulting from the infringement.
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Stronger Criminal Penalties
Under the amendment, in addition to other existing criminal acts of infringement, it would now be a criminal infringement to commit an “act of leaking or keeping a trade secret beyond the scope of an authorization to use or keep the trade secret.”
Further, in certain circumstances, the amendment would substantially increase the potential criminal fines for infringement.
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Status
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The government has now collected public comments after announcing the proposed amendment on August 17, 2016, and is currently preparing a final proposal for review and approval by the National Assembly.
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