Korean and US patent law considers certain action as infringement, even though it may not be direct infringement. It is an act deemed to be an infringement of a South Korean patent and indirect infringement of a US one. They have a common point in that their purpose is to actually protect the rights of patent holders, but they are too different to be considered the same.
The article on acts deemed to be an infringement of South Korean law was introduced through the 1973 Patent Law. The purpose of the introduction is to meet the trend of internationalization of patent system and to strengthen the protection of the rights of inventors and owners. According to the article, in order to be considered as infringement, (1) the infringing object will be used for the implementation of the patent invention (publicity), (2) the infringing object will be dedicated to the implementation of the patent invention (propriety), and (3) As a result, it is required to subscribe to the production transfer, rental, income.
South Korea Patent Law Article 127 (Acts Deemed to be Infringement) Where any person intends to conduct any of the following acts as his/her business, he/she shall be deemed to infringe on a patent right or an exclusive license:
- In cases of the invention of a product, acts of making, assigning, leasing, importing, or offering for assignment or lease articles used exclusively for producing such products;
- In cases of the invention of process, acts of making, assigning, leasing, importing or offering for assignment or lease articles used exclusively for working such process.
Korea’s latest case for indirect infringement is the Supreme Court sentenced 2019. 2. 28. 선고 2017다290095. The defendant’s act of obtaining a request from the ordinary licensee of the patent invention of this case, the invention of the friction stir welding machine, which is the exclusive product of the patent invention, cannot be seen as infringes the plaintiff’s patent rights on the patent invention of the case.
Source : Darts-ip (darts-363-146-G-ko)
Acts Deemed to be Infringement do not comply with the definition of indirect infringement in the United States, and there are significant differences in requirements. Since indirect infringement is an infringement by third party acts, it is required that there exists objective infringement objectively and subjectively there is intentional negligence. On the contrary, acts deemed to be Infringement not require objective actions by third parties and do not require subjective requirements. Thus, acts of infringement and indirect infringement may not be the same.
[us patent law 271(f)(1)] Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.
The latest US case for indirect infringement is that of the Supreme Court’s Life Technologies Corp. v. Promega Corp (2017). The “major part” of Section 271 (f) (1) of the Patent Act means “amount,” and a component is found to be not a major part of the component.
Source : Darts-ip (2014-1538darts-777-000-D-en)
If the acts deemed to be Infringement is viewed as the same as indirect infringement, (1) the extent to which an actor should be held liable becomes too wide than US indirect infringement be held. (2) Nevertheless, the type of infringement is so small that it is questionable whether the patentee can be practically protected. (3) Confusion may occur due to the appearance of indirect infringement in patent and copyright is very different. Therefore, it is difficult to see acts deemed to be Infringement as indirect infringement, and it is considered to extend the effect of patent rights as direct infringement is expanded.
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