The South Korean Patent Act has been amended to include “exporting” as one of the acts encompassed by patent infringement. The new law takes effect on July 22 2025.
Expansion of the acts constituting patent infringement
Article 2 of the Patent Act defines what constitutes “practising an invention”. The revised law adds “exporting” to the text of Article 2, which now reads:
"a) In the case of a product invention, producing, using, assigning, leasing, exporting, or importing the product or offering to assign or lease the product (including displaying the product for the purpose of assigning or leasing; hereinafter, the same shall apply);
b) In the case of a method invention, using the method or offering to use the process;
c) In the case of a method invention for producing a product, in addition to the acts specified in item b), using, assigning, leasing, exporting, or importing the product produced by the method or offering to assign or lease the product."
Before the revision, if an unauthorised third party exported patented products overseas, it was not considered patent infringement. Nonetheless, when calculating patent damages, courts have been known to consider both domestic and overseas sales made by infringers, to the extent that a causal relationship was recognised.
Under such circumstances, patent holders seeking to block export activities had to rely on protection provided by laws other than the Patent Act, such as customs seizures through the Customs Act or measures provided by the Korea Trade Commission (e.g., the Act on the Investigation of Unfair International Trade Practices and Remedy against Injury to Industry).
As global trade increases, import and export activities are, naturally, occurring more frequently. The current revision is therefore timely. Since the Patent Act now allows export prevention and damage claims to be pursued simultaneously, patent infringers can be more effectively deterred.
This revision aligns the Patent Act with the Design Protection Act and the Trademark Act, which already define exporting as a potentially infringing act. The amendments also apply to the Utility Model Act mutatis mutandis.
The revision’s advantages for patentees
The revision is expected to have several positive impacts on patent enforcement:
Patent rights can now be enforced against export activities themselves. In the past, patent infringement could only be claimed under the Patent Act if there were other activities associated with the export, such as “producing” (manufacturing) or “assigning” the patented products. Now, activities such as brokering can also be enjoined and subject to damages.
Even before the law was revised, in some decisions, courts considered the infringer’s overseas sales revenue when calculating the amount of damages awarded. With a clearer basis in the Patent Act, patentees can now more actively claim damages based on overseas sales.
When infringing products are exported to multiple countries, distribution can be effectively blocked by prohibiting their exportation from Korea. Even if the patentee holds corresponding patents in multiple countries, a ban at the export stage would be a far more cost-effective option than initiating litigation in each infringing country.
