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IP Newsletter | Fall 2017
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PATENT
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Changes to Patent Marking Rules
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Unlike many other jurisdictions where patent marking plays a vital role in preserving a company's rights to recover money damages from an infringer, patent marking is not a requirement for damages in Korea. However, if you choose to mark products, only patent owners and licensees (exclusive or non-exclusive) can mark a product with the relevant patent numbers. Moreover, patent markings are only available for patents relating to (i) a product or (ii) a method of making a product.
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Additionally, while there are no requirements to have patent markings, if you choose to mark your product, you are obliged to follow the rules defined in the Patent Act, which was amended on March 21, 2017 and became effective on September 22, 2017. Previously, there were no specific requirements or rules regarding how to mark a product with the patent number.
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Now, if you choose to mark your patent, it must conform to the following format:
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Registered Patents (product): Patent XXXXXX
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Patent Application (product): Patent Application (Examination) Pending XXXXXX
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Registered Patent (method): Method Patent XXXXXX
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Patent Application (method): Method Patent Application (Examination) Pending XXXXXX
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If markings cannot be made on the article itself, markings can be made on the container or the packaging. However, patent owners should be cautious about simply marking the packaging rather than the article because it is more convenient. Marking the container or the packaging is limited to those instances where the product cannot be marked.
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Further, the law does not indicate whether every valid patent that applies to a particular product must be listed. However, the law allows marking of a product with a link to a website showing the list of applicable patents and patent applications.
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False marking is defined as marking an article with a patent number without consent of the patentee, using a patent number on an unpatented article, using the words "patent pending" on an article for which no patent is pending, or otherwise marking an article causing others to confuse an unpatented article as a patented article or an article for which no patent is pending as an article for which a patent is pending. False marking is a crime and can be subject to imprisonment up to three (3) years or a fine of up to thirty million Korean Won (KRW 30,000,000; approx. USD 27,000).
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The best way to avoid a potential false marking problem is to periodically review your products and patent portfolios to ensure the patent markings are correct. This includes monitoring and reviewing licensees.
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Back to Main Page
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If you have any questions regarding this article, please contact:
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For more information, please visit our website: www.ip.kimchang.com
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