Patent law developments in South Korea

Despite its global status as one of the most active countries for the development of intellectual property, South Korea has a reputation for being less friendly in terms of patent protection and enforcement compared to other major jurisdictions. For example, South Korea has been notorious for its strict examination requirements concerning pharmaceutical-related inventions, e.g., clinical data requirement, non-recognition of patentability for second medical use claims, etc.

South Korea’s patent litigation procedures have also been known to be poorly equipped for discovering evidence to prove patent infringement and damages, and sometimes unfavourable to foreigners. In this regard, South Korean courts have been trying to change the environment for patent protection and patent litigation, specifically by rendering decisions that are more favourable to the protection of pharmaceutical-related inventions. Additionally, the courts have implemented an improved discovery process and established an international panel that provides foreigners with more convenient patent litigation procedures.

Inventive step of second medical use inventions recognized by the Supreme Court.

The novelty of a second medical use invention for a new dosage regimen was first recognized by the Supreme Court (en banc case) in 2015, overruling an earlier Supreme Court decision holding that a second medical use could not be a patentable invention. Despite the en banc decision, the standard for the inventive step of a second medical use invention had not been clearly defined by the court.