In order to reduce the burden of proof on the patent holder and punish the infringer in a lawsuit for intentional patent infringement, a treble damages system was introduced through the revision of the Patent Act article 128 in 2019. Although the effect of compensating for the actual damage to the patent holder and preventing patent infringement was expected, approximately two years and six months have elapsed since the enforcement date of the revised law, and only two cases of increased damages were claimed and sentenced to the first trial. In one case, the provisions of the amended law could not be applied according to the provisions of the Addenda to the Patent Act, and in the other case, ‘intentional’ was not recognized. On the other hand, in the United States, claims for enhanced damages due to willful patent infringement are actively being made, and the court’s judgment criteria for malicious or willfullness have been established through several cases. The increase in cases of infringement of malice and enhanced damages before and after the Halo judgment of Supreme court has been confirmed through empirical analysis of related judgments. In Korean patent practice, the reason why Article 128 Paragraph 8 of the patent is not actively utilized is the supplementary provisions that limit the application of the enhanced damages system to infringement acts after July 2019, but it will be resolved naturally with the passage of time. A more fundamental cause is that the criteria for judging ‘intentional’ in ‘infringement recognized as intentional’ in Article 128 (8) of the Patent Act have not been established due to the small number of related cases. In Seoul Central District Court 2020Gahap505891 decision ordered on May 27, 2021, the court recognized that the plaintiff had delivered goods to the defendant and advertised that the plaintiff had the patent right, but it was difficult to admit the defendant’s intention to infringe on the patent. It was judged that the evidence was insufficient. However, it is difficult to conclude that the court’s criteria for judgment of intentionality are strict only with one case in which intention is denied. Considering the purpose of the Patent Act revision and inclusion of willful negligence in interpreting Civil Act §750, a more relaxed standard should be applied to intentional patent infringement. Furthermore, in order to make the proof of intentional infringement more clear as a patent holder, the ‘warning letter’ should be actively used even before litigation. A suspect infringer shall get advice from experts to avoid intentional patent infringement even before he or she receives a warning letter from the patent holder.
The distinction between software expression protected by copyright law and software functionality not protected by copyright law is often elusive. Accordingly, we analyze what the U.S. Supreme Court’s Decision in a program copyright lawsuit between Google and Oracle suggests about the direction of copyright protection for the latest software. Next, we will try to find an appropriate balance between the scope of protection of patent and copyright for software. To this end, we look at ways to increase the expertise of judges to clearly determine the boundaries of the protection scope of patents and copyrights for software. Nevertheless, as for software, overlapping protection of patent and copyrights may inevitably occur. For this, we look at ways to resolve the inconsistency between the protection period of patent and copyrights. Lastly, we will look at the special law for areas not protected by patent and copyright laws.
Republic of Korea has both criminal penalty and punitive damages as a remedy for willful infringement of patent rights after the revision of the Patent Act in 2018. The statutory sentence for willful patent infringement, especially imprisonment, has been enacted since 1961, and the sentence has increased, but statistics over the past 13 years show that the application from the prosecution stage to the judgment is extremely insignificant. Even in the one case in which the prison sentence was ordered, it was necessary to apply doctrine of equivalent, and it is difficult to show the clarity required by the principle of legality, which shows circumstantial evidence that raises doubts about the necessity and justification of the imprisonment against willful patent infringement. Punitive damages is a system that has a punitive function and a deterrent and preventive function of the infringer’s actions, and can perform the same function as the imprisonment against infringement. The United States, Taiwan, China, Canada, Australia and the Philippines, which have punitive damages, do not have criminal penalties for willful infringement. Republic of Korea is the only country that has both criminal penalties and punitive damages for willful patent infringement. For the development of science and technology and economic development, published patents must be used in various ways throughout society. Due to its nature, it is desirable for the regulation and coordination of the country in the field of science and technology to intervene only to the extent of supplementing it while respecting individual autonomy and creativity as much as possible. The purpose of the Patent Act lies in technological innovation and industrial development, and although it is a willful infringement, punishing patent infringers as imprisonment or threatening them can be an act of cutting off the buds of technological innovation in advance. It would be desirable to perform remedies for patent infringement as compensatory damages, and punishment and prevention for willful infringement through punitive damages.
Proper use of health and medical data helps develop the medical industry and promote national health. In particular, Korea has a national health insurance system, so a huge amount of information, including health examination records, drug prescription records, and insurance qualifications, is collected from public institutions such as the National Health Insurance Corporation and the Health Insurance Review and Assessment Service. It has favorable conditions for data utilization in that it is possible to systematically collect and manage data. However, there are various evaluations on whether such policies to revitalize the use of health and medical data are actually successful. According to the ‘Ministry of Public Administration and Security’s evaluation of the operation status of public data provision’, the level of public data management system was good, while the level of private use support and information quality were insufficient. Data governance is being emphasized to promote the use of health and medical data along with the legislation. This is because the participation of experts and public-private agreements are important due to the nature of health and medical data, and securing social trust in personal information protection is important. In relation to this, we tried to present specific measures by reviewing the inspection of the current health care big data platform and measures to strengthen and improve it in a comparative manner. The Policy Deliberation Committee within these platforms is stipulated as a directive and is in charge of deliberation on not only policy deliberation but also research purposes and de-identification measures. It was proposed to legalize the basis for the composition of the Policy Deliberation Committee, focus its functions on policy decision-making, and to specialize in de-identification judgment by establishing a separate professional deliberation agency. As an organization dedicated to judging the de-identification of health and medical data, a plan was proposed to establish governance for professional deliberation of health and medical data and to establish a deliberation committee to deliberate on the adequacy of de-identification. The National Health Insurance Service, the National Health Insurance Review and Assessment Service, the Korea Health Industry Promotion Agency, and the National Cancer Center, which are currently combined specialized institutions, can supplement de-identification deliberations. The governance of such health and medical data review can provide policy advice to the Policy Deliberation Committee within the health and medical data platform.
Thanks to the support and encouragement of the Chinese government over the past decade, China’s platform economy has made rapid progress. However, as some large-scale big-tech companies grew into super-platforms, they formed a structure that dominated the market and their behaviors of “choose between two” became widespread. On February 7, 2021, the competition authorities promulgated the <Anti-Monopoly Guidelines on the Platform Economy of the Anti-Monopoly Committee>, which ended the era of unlimited policy support for Chinese platform companies and entered an era of strong management supervision. The platform’s forced act of “choosing between two” is currently receiving the most attention among the platform's anti-competitive acts, and three routines are currently being used simultaneously in China to regulate this. The first is legislation, and the second routine is the strong administrative punishment of competition authorities. In addition, China is actively applying the means of corporate interviews to suit the characteristics of its social system. These measures have sufficiently shown the attitude of competition authorities and serve as a preventive and warning to other platform companies. There are still problems to be solved, for example, whether to view each side as a separate market or a unified market in defining related markets in a two-sided market (multi-market) formed by platform is the first problem. In addition, legislation is inconsistent in the analysis method, creating confusion in the enforcement law in practice. Then, there are still many difficulties in determining the platform’s dominant market position, and due to the confidentiality and technology of some “Choose between two” actions adopted by the platform, there will be many difficulties in proving them and obtaining damages.