Licensee has Standing to Challenge the Validity of a Patent in Korea. Korean Licensing & Royalty Law Updates

Prior to a recent holding by the Supreme Court of Korea, the Korean Supreme Court had conflicting holdings on the definition of an “interested party” under Korean Patent Law. In order for a party to challenge the validity of a patent, in Korea, a party challenging the patent must be an “interested party.” Until this year, it was not clear whether a licensee of the patent in question is an “interested party” with standing to challenge the patent in Korea. A recent holding by the Supreme Court shall, likely, lead to substantially increased risk of non-payment of royalty payments and litigation in Korean courts. We, thus, suggest all that are receiving, or are expected to receive, royalty payments from Korean companies to have a comprehensive review of your patents and licensing agreements. A good deal of the risk can be mitigated by a nuanced license agreement and a Korean-tailored patent.

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