Bing Zhao

The Patent Court of Korea had a bold experiment in holding its first English-language trial hearing earlier this month. Korean authorities seem to think this change will make the venue more appealing to foreigners, but that outcome seeks unlikely.

The test trial was an appeal case from patent applicant 3M against KIPO. Attorneys representing both plaintiff and the defendant argued in English, while judges spoke Korean with simultaneous interpretation provided via headsets throughout the case. The experiment comes as Korea’s National Assembly considers a bill that would create an International Chamber where cases can be handled in English.

The Patent Court hears appeals against the Korean Intellectual Property Trial and Appeal Board; in 2016 it also gained exclusive appellate jurisdiction over all patent infringement cases in the country. Since then, it has issued procedural guidelines trying to speed up the appellate procedure in IP suits as well as improve predictability for parties involved. The guidelines were a first step toward expanding the court’s role and capacity, and the English hearing is another attempt to attract foreign litigants and boost their confidence in the Court.

This test hearing stirred discussion among local IP professionals, while the Korea Herald contended that it aligns with Korea’s growing ambitions to prove itself as a leading nation in global IP by becoming a global hub for patent litigation. But while English-language hearings may have their merits in attracting foreign parties to litigate in the country, they won’t do the trick on their own.

Language is sometimes a factor in choosing a litigating venue, but it is almost never decisive. Making English available in the courtroom can make it more convenient for foreign parties to communicate and follow proceedings, but it does not necessarily affect the fundamental fairness and predictability of the court. Far more important are considerations about remedies, including availability of injunctions and the amount of damage awards. The Korean market is not as big as China or India, nor is it a manufacturing hub for foreign companies. The size of the market and its fairly low damages are arguably not incentive enough to drive foreign rights owners to litigate in Korea.

Some local IP executives express skepticism that the policy will actually generate foreign interest. One Korean head of IP told me that only a very small number of judges can hear cases effectively in English, so it would be really difficult and logistically challenging to hold all hearings involved foreign parties in English. And if the judges can’t understand the arguments in English perfectly, it could give rise to misunderstandings, which could affect the quality of rulings. Moreover, the use of simultaneous translations in Korean and English could add time and cost to the litigation process. Nevertheless, he gives the Court and authorities credit for aiming to make Korea a more litigation friendly and convenient jurisdiction for foreign IP rights holders.

The first English test hearing is a rather bold experiment, and the agenda of making Korea an IP litigation hub is an ambitious one. But the project may not appeal to everyone in the domestic industry. Unlike foreign companies, Korean companies do have massive scales of manufacturing at home - if authorities want to attract more patent litigation, it could add more potential risk for major Korean corporates, considering some of them are already among the biggest US patent defendants.