Remedies

Remedies for violations of competition law involving IP

What sanctions or remedies can the competition authorities or courts impose for violations of competition law involving IP?

The KFTC may impose an administrative fine within the limit prescribed by statute and issue an order prohibiting the anticompetitive activity, depending on the type of competition law violation involved. In addition, the KFTC may issue corrective orders to address the resulting anticompetitive effect. If a party found to have violated restrictions related to business combination fails to comply with a corrective order, the KFTC may impose penalties of up to 0.03 per cent of the relevant transaction price for each day during which such failure continues.

Competition law remedies specific to IP

Do special remedies exist under your competition laws that are specific to IP matters?

No.

Scrutiny of settlement agreements

How would a settlement agreement terminating an IP infringement dispute be scrutinised from a competition perspective? What are the key factors informing such an analysis?

As noted in question 24, the Supreme Court found a settlement agreement terminating a patent dispute can constitute an unfair collusion, and that any antitrust effects of pharmaceutical patent settlements should be determined on a case-by-case basis, considering the totality of circumstances, including the facts leading to the settlement, relevant time periods, economic terms and actual and expected legal costs in the underlying litigation, among others. Considering the Supreme Court decision, the following acts may constitute unlawful collusion: agreements to delay market entry until the patent is expired, asserting the patent right in a manner that exceeds the scope of the patent, maintaining a patent by entering into an agreement with a third party to withdraw a patent invalidation action to deter such third party’s market entry while knowing the patent is invalid etc.