Korea’s punitive damages regime for patents was introduced through Article 128(8) of the Patent Act, effective July 9, 2019, allowing courts to award up to three times actual damages for willful infringement of a patent or exclusive license. A more recent amendment raised that ceiling to five times actual damages for willful infringement after August 21, 2024. 

However, because the regime is still relatively new and precedent remains limited, guidance for exactly when and how to apply enhanced damages when willful infringement is found has been lacking. Recently issued decisions are beginning to establish concrete standards and practical guideposts for decision-making. The following summarizes the emerging standards for assessing willfulness, the factors courts weigh in setting the enhancement amount, and the implications for IP management strategy.

1. The Standard for Willfulness

“Willful” infringement means continuing an act with knowledge that it will result in patent infringement, and it encompasses not only definite intent to infringe, but also willful blindness to infringement. Because an infringer’s internal state is rarely susceptible to direct proof, courts assess willfulness comprehensively from indirect facts bearing a substantial connection to intent, applying logic and the rules of experience (see Supreme Court Case No. 2000Da67020 decided on March 9, 2001). 

Recent decisions illustrate how this plays out. In one decision (IP High Court Case No. 2023Na11276 decided on October 31, 2024), the court treated as an indirect indicator of willfulness whether the infringer had learned of the patent’s existence in advance through a prior business relationship with the patentee, and found particularly decisive that the infringer began unauthorized production and sales while engaging in licensing negotiations, and then continued infringing without permission after negotiations broke down. Persisting in infringement over a long period despite receiving a specific cease-and-desist notice from the patentee was likewise a key consideration. 

Another recent decision (IP High Court Case No. 2022Na2183 decided on October 23, 2025) treated the infringer’s past conduct, the development history of the product, and the specific manner of infringement as central indicators of willfulness. There, the infringer had earlier signed a memorandum of understanding during a prior dispute with the right holder, undertaking that it would “not produce any products similar to products produced by the plaintiff relating to the designs, utility models, and patents.” The court reasoned that, from the time it signed that memorandum, the infringer must have clearly recognized it had a duty to verify the existence of competitors’ rights when developing products. A related criminal conviction for patent infringement — in which the infringer had argued that the infringing product resulted from imitation through market research rather than independent development — further supported the finding of intent. 

The same decision also rejected the infringer’s defense that there could have been no willfulness because it had filed trials at the Intellectual Property Trial and Appeal Board (IPTAB) relating to the patent. The infringer had obtained a favorable negative scope-confirmation ruling from the IPTAB against the patent, and also filed for a decision of invalidation against the asserted patent which was ultimately dismissed, and thus argued that it lacked intent because it had relied on the scope-confirmation decision until the first-instance infringement judgment held otherwise. However, the court dismissed this argument, noting that (i) in light of the background and history of this case, the infringer should have fully been aware at the time the infringement suit was filed that its manufacturing and sales activities infringed the patents; (ii) the scope-confirmation ruling used a different claim construction than the infringement action; (iii) the scope and invalidation trials were only belatedly filed well after the patentee’s cease-and-desist notice, and the invalidation petition was dismissed; and (iv) the infringer continued infringing before and after the rulings regardless of their outcome. 

2. Factors Considered in Setting the Enhancement Amount

When setting the amount of enhancement under Article 128(8), a court first fixes the actual damages, and then determines the appropriate multiplier by comprehensively weighing the eight factors set out in Article 128(9): the infringer’s position of dominance; the degree of intent and awareness of harm; the scale of the harm to the right holder and the economic benefit to the infringer; and the duration and frequency of the infringing acts, among others. In the 2023Na11276 decision, the court applied these eight factors to set enhanced damages at two times the actual damages. 

The court’s reasoning is instructive. It gave significant weight to the relative position of dominance and economic gap between the parties, noting that the patentee had been a subcontractor to the infringer and that the infringer’s size and resources were far greater. Regarding the degree of intent and awareness of harm, the court found definite intent based on the infringer’s launch of production and sales without authorization while being aware of the patent and having engaged in licensing negotiations, and the infringer’s continued sales even after losing the invalidation and negative scope-confirmation actions following the cease-and-desist notice. Although the precise scale of harm to the patentee and exclusive licensee was not clearly established by the evidence, the court considered that the infringer’s economic benefit could not be regarded as small, and that the infringement was long in duration and very frequent. Finally, on remediation efforts, the court found that, while there had been some product recalls and settlement attempts, the recall volume was small relative to sales, and the attempts at settlement were merely passive responses to the patentee’s requests with no real compensation — and therefore could not be regarded as a sufficient effort at remedy. 

3. Outlook and Practical Implications

The introduction of enhanced punitive damages and the increase of the maximum enhancement to five times actual damages have been positive changes to try to strengthen patent protection and the remedies available to victims of infringement. These changes have also elevated the question of willfulness — previously not a focal point in damages assessment — into one of the central battlegrounds in patent disputes. As precedent in this area remains limited due to the short history of the enhanced damages provisions, continued development of the governing legal principles for handling such damages will be necessary.

Going forward, businesses should pay close attention as courts articulate concrete standards for finding willfulness and clearer methodologies for assessing damages, and establish improved IP management strategies accordingly. In practical terms, patentees should build a willfulness record early — documenting the counterparty’s prior knowledge of the patent, conduct during negotiations, response to cease-and-desist notices, and behavior surrounding IPTAB proceedings. Potential defendants, in turn, should treat licensing negotiations and cease-and-desist correspondence as moments of heightened exposure, and respond with due care.