[Ip-health] Berkeley Global Antitrust Blog: Recent Korea Fair Trade Commission developments to affect IP practices

Thiru Balasubramaniam thiru at keionline.org
Tue Mar 4 07:11:28 PST 2014


Recent Korea Fair Trade Commission developments to affect IP practices
*By Kee-Hong Chun, Attorney at law*

The intersection between competition law and intellectual property law has
been a contentious issue and one that is currently increasing in Korea.

The Korea Fair Trade Commission ("KFTC") recently recognized the abuse of
intellectual property rights as a priority for enforcement. To this end,
the KFTC amended the "Guidelines on the Examination of the Exercise of
Intellectual Property Rights", which came into effect on April 7th, 2010,
to provide guidance and set forth scenarios illustrating the possible
unfair exercise of intellectual property rights in licensing (including
cross-licensing), patent-pooling and standard-setting activities. In 2010
and 2011, the KFTC conducted intellectual property right abuse surveys in
the pharmaceutical, IT, chemical and machinery industries.

On January 17th, 2012, the KFTC further announced the new "Guidelines for
Fair Patent License Agreements", which aimed to prevent unfair practices
and provide practical support in the licensing of intellectual property
rights. As an added step in its endeavor to deter abuse of patent rights
that may take place in connection with the adoption of a patented
technology as an industry standard, the KFTC promulgated the "Model
Operation Standards for Standard-Setting Organizations" on January 31st,
2012. It is important to note that these guidelines may still be relevant
to a company even if the company does not participate in any
standard-setting activities within Korea because the guidelines are not
intended to be applied to standard-setting organizations the operate
exclusively in Korea.

In light of the fact that the KFTC is attempting to enforce competition law
in this area more actively (as demonstrated by the recent amendments to the
guidelines and the KFTC's intellectual property right abuse surveys in 2010
and 2011), it is likely that there will be more developments through the
KFTC's investigations and examinations of anticompetitive practices
involving the use and abuse of intellectual property rights in the future.

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