Posted : 2017-07-02 16:17
Updated : 2017-07-03 15:34

Patent Court holds first English hearing

The Patent Court conducts a trial in English in Daejeon, Wednesday. Courtesy of Patent Court

Korea seeks to become patent litigation hub

By Lee Kyung-min

The Patent Court of Korea held a hearing, Wednesday, in which two lawyers argued a case in English, as part of continued efforts to become a foreigner-friendly venue for patent litigation amid a steady increase of such cases. Of the 611 patent dispute cases filed with the court last year, more than 40 percent, or 260 cases, were filed by foreigners.

The Intellectual Property Hub Court Committee under the Supreme Court has been seeking since 2015 to establish an international chamber, where lawyers deliver arguments in English.

A bill, now pending at the National Assembly, seeks to facilitate its establishment on a legal footing. Rep. Jeong Kab-yoon of the main opposition Liberty Korea Party first proposed the bill in December last year. The bill aims to revise the current law which requires all court cases be conducted in Korean.

At the court in Daejeon, lawyers representing each side argued in English over the case "3M Innovative Properties Company versus the Commissioner of the Korea Intellectual Property Office."

Attorneys for the plaintiffs included Kim Jong-deok, Park Chang-soo and Chang Deok-soon from Kim & Chang; while the defendant was Hong Young-wook. Judge Kim Whan-soo, who presided over this case, also used English to instruct the parties. Opening remarks and other instructions were given in Korean. Simultaneous interpretation both in English and Korean was provided via headsets.

Diverse members of Korea's international business community attended the hearing. Members of the Japan Chamber of Commerce as well as intellectual property representatives of Apple, Chanel, Hermes and Louis Vuitton were also in attendance.

Kim said Korea has great potential to become one of the most sought-after venues due to its strong advantages.

"Take the United States, for example. Litigation there is costly and time-consuming because cases are deliberated by a jury and most importantly, lack predictability," Kim said.

"Compared to that, Korea has numerous advantages. First, the case is relatively less expensive, as the appraisal of costs for damage assessment, for example, is conducted by judges, unlike other countries where a party asserting a patent infringement has to hire an accounting firm, which is an additional cost."

Having a case reviewed by judges rather than a jury also increases the predictability, he added.

The most worrisome aspect for the parties involved in a lawsuit, if it is deliberated on by a jury, would be that their decision would be rendered based on factors other than the appropriate interpretation or application of the law, Kim said.

"What both the plaintiffs and the defendants want is predictability, rather than risking their time and energy _ and most importantly, money _ on an outcome they cannot count on. What the Patent Court would like to offer them is that it's worth a try in Korean courts."

Wednesday's hearing was significant as it showed the Korean court was continuing efforts to better increase accessibility for foreigners to whom the language barrier is a major obstacle in selecting a country as the venue for litigation.

"I am aware that it is widely believed that conducting trials in English sounds like a challenge beyond comprehension to many people, but not really, because the points of contention and what's at issue are the same, regardless of the language itself," Kim said.

The outcome is not deliberated based on the level of English, but who makes a more compelling argument and whether they can produce conclusive, irrefutable evidence, he added.

Sven-Erik Batenburg, head of legal and international affairs at the European Chamber of Commerce in Korea, said he commended the efforts of the Patent Court.

"English is not a determining factor in selecting a venue for patent litigation. The outcome of the litigation supersedes the language barrier," he said.

"For foreigners, the location of Korea poses a geographical challenge. But I want to highlight that I'm impressed and happy with the fact that the Korean court is looking into the possibility of making English available for parties to the dispute."

While Batenburg agreed that passing the pending bill at the National Assembly would better lay the foundation for Korea to become an attractive venue for litigation involving foreigners, he declined to say whether the bill should be passed expeditiously.

"I am a firm believer in having the best access to court proceedings and making them easy and understandable. Also, people want fair, reasonable and unbiased judges, regardless of the nationality of the parties to a suit. People want their cases to be ruled based on merit, not by any other factors."

The Patent Court specializes in intellectual property disputes, and was the first of its kind established in Asia in 1998,.

It has published Patent Court Decisions and IP Law Journals in English and guidelines for court practice and procedures in English, Chinese and Japanese. It is also setting up procedures for witness examination via video conferencing, and building a database for its decisions in English.

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