New Rule on the Social Use of Patented Invention

On January 27, 2010, the Korean Patent Act was amended to facilitate social use of patented invention. Two changes were brought by the amendment.

First, the government may use a patented invention in public interest. This means that the government use is no longer limited to national defense or other circumstances of emergency. But the government use must meet a controversial requirement of “non-commercial use.” This is controversial because the government may allow a third party (mainly for-profit businesses) to use the patented invention. This rule on the government use goes into effect on July 28, 2010.

Second, it is made clear that an experimental use exemption encompasses any activities for getting an approval of pharmaceutical products or agricultural chemicals. This change took effect as of January 27, 2010.

English translation of the Amendment:

Article 106bis (Government Use of Patented Invention)
(1) If a patented invention is necessary for national emergency, other extreme urgency or non-commercial use in public interest, the government may use the patented invention or allow a person other than the government to use the patented invention.
(2) When the government or the person other than the government knows or has demonstrable grounds to know the existence of a valid patent right, the patentee, the exclusive licensee or the registered non-exclusive licensee of the patent right shall be informed promptly of the fact that the patented invention is used according to Paragraph 1.
(3) The government or the person other than the government, when a patented invention is used pursuant to Paragraph 1, shall pay a reasonable compensation to the patentee, the exclusive licensee or the registered non-exclusive licensee of the patent.
(4) Matters necessary for the government use and the payment of the reasonable compensation are prescribed by Presidential Decree.

Article 96 (Limitations on a Patent Right)
(1) The effect of a patent right does not extend to any of the following subparagraphs.
(i) Working a patented invention for research or experimental purposes (including research or experiment for the purpose of getting an approval or reporting a pharmaceutical product pursuant to the Pharmaceutical Affairs Act or for registering agricultural chemical pursuant to the Agricultural Chemicals Regulation Act.