Papers by Sang Jong
For the past thirty years, the substantive laws of Korea in the filed of patent protection have d... more For the past thirty years, the substantive laws of Korea in the filed of patent protection have developed very fast so that their statutory provisions are almost the same as those of advanced countries like the U.S.A. However, the reality of patent protection in Korea is somewhat different from the statutory provisions themselves. While the reality of patent protection depends upon the practice of patent litigation, the practice in Korea illustrates several problems and faces a few challenges. 10 years ago, the Patent Court was established in Korea. Although the Patent Court has been doing its job very well in general, the relevant industry is not satisfied with its non-obviousness test. Since the concept and criteria of non-obviousness is the most important in patent litigation, the Patent Court of Korea must try and provide a more clear and certain test to the industry so that the industry or potential inventors understand what level of inventiveness is required for patent protection. Given the fact that invalidity of a patent is raised often as a defense in patent litigation, a more clear and certain non-obviousness test is essential to lower patent disputes in the future. Japan and Korea is still based on the two-tier litigation system: Although damages and injunctions against patent infringement is litigated in judicial courts, invalidity of patents should first be filed with the Intellectual Property Tribunal. The Patent Court may only take invalidity cases as a second trial court after the Tribunal. While ordinary judicial courts are not allowed to deal with the invalidity issues, the Patent Court are not allowed to deal with remedies such as damages or injunctions. Consequently, the patent right owners and alleged infringers will all have to go through two tier procedures for a long time with a lot of costs. The paper suggests that the two-tier system should now change.
Intellectual Property in Common Law and Civil Law, 2013
GRUR International, 2020
The success of Samsung's mobile phones and the Oscars for ‘Parasite’ were made possible by the in... more The success of Samsung's mobile phones and the Oscars for ‘Parasite’ were made possible by the intellectual property system, R&D investments and freedom of expression. Just as ‘Parasite’ has illustrated Korean society as comprised not only of the rich living in beautiful houses but also the poor living in semi-basement dwellings, so the intellectual property rights system has had both positive and negative effects on the Korean economy.
International Data Privacy Law (Oxford University Press), Vol.4, Issue 1, 2014
This chapter examines the statutory grounds for governmental access to private-sector data in Kor... more This chapter examines the statutory grounds for governmental access to private-sector data in Korea. It focuses on issues such as the circumstances under which access is allowed without a warrant and how unjustified government access can take place in practice. Systematic government access to private-sector data can take place through warrants issued by a court, whereas in other situations it does not. Notably, due to the unique truce situation, under which the Republic of Korea is technically still at war with North Korea, Korean authorities are sometimes allowed to obtain private-sector data without warrants, for national security purposes. This chapter examines the statutory grounds for governmental access to private-sector data in Korea, focusing specifically on issues such as the circumstances under which access is allowed without a warrant and how unjustified government access can take place in practice.
Distinguished Papers on Korean Law Vol.1, 2018
It is worthwhile to stay abreast of developments in judicial
decisions and legislative responses ... more It is worthwhile to stay abreast of developments in judicial
decisions and legislative responses to unfair business practices in a
civil law country such as Korea. Civil law judges are strictly bound by
statutory provisions and thus, face difficulties in accommodating rapid
market changes under existing statutes. Surprisingly, however, there are
several cases in which the court attempts an entirely different and new
interpretation of statutes to meet the new demands of a relevant
market. More surprising is a legislative development in which a
relevant statute is amended a few years later to follow a new
interpretation by the Supreme Court and eventually, the introduction of
a general clause on unfair business practices in the statute.
Part II of this Article will first introduce the facts and decisions by the Seoul High Court and ... more Part II of this Article will first introduce the facts and decisions by the Seoul High Court and the Supreme Court in Samsung Electronics, Inc. v. Sung-Kyu Cho. Part III will examine the object and purpose of the contributory infringement doctrine, the question whether direct infringement should be a prerequisite for a finding of contributory infringement, and the relationship between
Washington University Journal of Law Policy, 2002
Law Technology, Jul 1, 2010
Systematic government access to private-sector data can take place in a variety of ways. Some acc... more Systematic government access to private-sector data can take place in a variety of ways. Some access and utilization with statutory ground may still require for warrants issued by the court, while others do not. Because of the unique truce situation, where the Republic of Korea is technically still at war with North Korea, the Korean law enforcement authorities are sometimes allowed to have access to private sector data without warrants, for national security purpose.
This paper will examine statutory grounds for governmental access to private sector data in Korea, specifically issues such as circumstances under which unwarranted access is allowed, and how unjustified government access can take place in practice.
An Amendment Bill has been submitted to the effect that five district courts have regional exclus... more An Amendment Bill has been submitted to the effect that five district courts have regional exclusive jurisdiction on patent infringements AND the exclusive jurisdiction of PATENT COURT OF KOREA expands to include patent infringement cases as well. The Bill is expected to pass the National Assembly soon. The industry leaders and patent attorneys have demanded Expansion of the exclusive jurisdiction of PATENT COURT OF KOREA for the past several years. When the amendment bill passes, PATENT COURT OF KOREA will be expected to contribute to innovations in Korea in the future. As was the case with the Federal Circuit, PATENT COURT OF KOREA, with its monopoly on patent cases, will also have to face not only compliments and credit but also worries and criticism as well. We will have to wait and see how it goes.
An Amendment Bill has been submitted to the effect that five district courts have regional exclus... more An Amendment Bill has been submitted to the effect that five district courts have regional exclusive jurisdiction on patent infringements AND the exclusive jurisdiction of PATENT COURT OF KOREA expands to include patent infringement cases as well. The Bill is expected to pass the National Assembly soon. The industry leaders and patent attorneys have demanded Expansion of the exclusive jurisdiction of PATENT COURT OF KOREA for the past several years. When the amendment bill passes, PATENT COURT OF KOREA will be expected to contribute to innovations in Korea in the future. As was the case with the Federal Circuit, PATENT COURT OF KOREA, with its monopoly on patent cases, will also have to face not only compliments and credit but also worries and criticism as well. We will have to wait and see how it goes.
There have been dramatic changes in the copyright law and other intellectual property laws of Kor... more There have been dramatic changes in the copyright law and other intellectual property laws of Korea for the past three decades. Dramatic changes began in 1986 when the Copyright Act of Korea was totally revised to protect all works in accordance with the Universal Copyright Convention. Although there was general concern about the impact of those statutory changes on the cultural industry of Korea at that time, strengthened copyright protection soon turned out to become a very timely incentive for creativity and innovation. It was just from the middle of 1980’s that a huge wave of democratization and a breakaway from the political dark age gave slowly growing rooms for domestic creativity and innovation in Korea. For the past three decades, a lot of synergy between democratization and copyright protection contributed to fascinating developments in the cultural industry of Korea, from several domestic blockbusters well above Hollywood motion pictures to several drama and K-Pop music. And, yet, more than 36 thousand users recently 2013 were accused of copyright infringement and brought to prosecutor’s office. There are substantial worries that strengthened copyright system might have led to the abuse of criminal procedure in Korea.
The value of copyright has been dramatically changed from almost nothing to the utmost important ... more The value of copyright has been dramatically changed from almost nothing to the utmost important incentive for creation and innovation in Korea. For the first three decades of the Copyright Act which was enacted in 1957, copyright was perceived as an obscure and abstract concept merely within the statute. With a rapid rise of the information economy or technology intensive industry in the middle of 1980's, however, the copyright law is being increasingly seen as a core infrastructure underpinning a number of copyright-based industries in Korea.
For the past thirty years, the substantive laws of Korea in the field of patent protection have d... more For the past thirty years, the substantive laws of Korea in the field of patent protection have developed at a very fast rate such that their statutory provisions are now almost the same as those in advanced countries like the U.S. However, the reality of patent protection in Korea is somewhat different from the text of the statutory provisions themselves. While the reality of patent protection depends upon the particular practice of patent litigation, the practice in Korea illustrates several problems and faces several challenges.
The peer-to-peer ("P2P") technology and music file sharing have generated a steadily intensifying... more The peer-to-peer ("P2P") technology and music file sharing have generated a steadily intensifying war of words and legal actions not only in the USA but also in Korea. Despite hot debates over the Napster decision, the American decision appears to have guided the world in the wrong direction: The music industries all over the world have been encouraged to bring lawsuits against P2P networks or software rather than to negotiate and issue licenses for on-line music distribution. And, also, despite substantial differences among domestic statutes on copyright status of sound recording producers, judicial courts in some countries including Korea have been encouraged to hold P2P network operators and their users as liable for P2P music sharing. Strengthened protection of copyright has been made possible partly by increasing and expanding criminal sanctions against copyright infringement. Too broad or severe criminal sanctions would, however, stifle appropriate level of exploiting copyright works and consequently contradict the policy goal of copyright law itself, i.e. promoting the advancement of science and useful arts. The same risk may apply to criminalization of netizens for their access to on-line music.
Conference Presentations by Sang Jong
it is a risky business to introduce fair use doctrine in a civil law country like Korea. Since K... more it is a risky business to introduce fair use doctrine in a civil law country like Korea. Since Korea is a risk-taking country rather than a risk-averse country, Korea decided to introduce the fair use doctrine six years ago: The fair use doctrine for the benefit of innovations not only for the industry and users but also for creators as well in a fast changing internet environment. Actually, for more than thirty years, Korea has strengthened copyright for the benefit of creators. Many scholars including myself have raised a serious question as to what happened to users’ rights under the Copyright Act of Korea. During the course of debates and discussion to make a good balance between apparently conflicting interests of creators and users, Korea has faced two options. One option was to expand the scope of exceptions. Another option was to introduce a general clause on fair use. Korea opted for the second choice in 2011.
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Papers by Sang Jong
decisions and legislative responses to unfair business practices in a
civil law country such as Korea. Civil law judges are strictly bound by
statutory provisions and thus, face difficulties in accommodating rapid
market changes under existing statutes. Surprisingly, however, there are
several cases in which the court attempts an entirely different and new
interpretation of statutes to meet the new demands of a relevant
market. More surprising is a legislative development in which a
relevant statute is amended a few years later to follow a new
interpretation by the Supreme Court and eventually, the introduction of
a general clause on unfair business practices in the statute.
This paper will examine statutory grounds for governmental access to private sector data in Korea, specifically issues such as circumstances under which unwarranted access is allowed, and how unjustified government access can take place in practice.
Conference Presentations by Sang Jong
decisions and legislative responses to unfair business practices in a
civil law country such as Korea. Civil law judges are strictly bound by
statutory provisions and thus, face difficulties in accommodating rapid
market changes under existing statutes. Surprisingly, however, there are
several cases in which the court attempts an entirely different and new
interpretation of statutes to meet the new demands of a relevant
market. More surprising is a legislative development in which a
relevant statute is amended a few years later to follow a new
interpretation by the Supreme Court and eventually, the introduction of
a general clause on unfair business practices in the statute.
This paper will examine statutory grounds for governmental access to private sector data in Korea, specifically issues such as circumstances under which unwarranted access is allowed, and how unjustified government access can take place in practice.
In Cuozzo Speed Technologies v. Lee, the US Supreme Court upheld the United States Patent Office’s regulation requiring the Patent Trial and Appeal Board to apply the broadest reasonable interpretation standard in Inter Partes Review (IPR) proceedings. The Supreme Court also held that the Patent Office’s decision to institute an IPR proceeding is not appealable to the Federal courts.
IPR system was introduced to strengthen U.S. patents and defend against nonpracticing entities. Since then, the number of invalidation trials increased sharply: From average 400 five years ago increased to 1,600 petitions a year now. It is worth noting, however, that over 70% of post-grant proceedings are filed for electrical and computer patents. Unlike in the US, over 70% of validity trials are for pharmaceutical patents in Korea. On the other hand, invalidation trials increased dramatically in Korea, mainly because many of generic companies wanted to exploit what was called a generic exclusivity under the new Pharmaceutical Affairs Act.
Why do generic companies petition invalidation trials? First of all, because, in Korea, invalidation trials are the only way to claim that the patents of original drug are invalid. Unlike in the US. generic companies in Korea may not claim the invalidity of original drugs during the course of infringement litigation under what is called a two-tier system distinguishing infringement and invalidity trials.