By Jong Koo Park, Young Min Lee
The recent amendments to the Act on Prevention of Divulgence and Protection of Industrial Technology, which were passed by the National Assembly on June 30, 2011, were promulgated on July 25, 2011. The amendments are scheduled to become effective six months from the promulgation date - on January 26, 2012.
The salient points of the recent amendments are as follows:
- Restrictions on foreign investments (such as overseas
mergers/acquisitions and joint investments) in institutions that
hold key national technologies are adopted: Under the
current law, if an institution holding key national technology
which was developed using government funding intends to export the
technology overseas, such as by selling or transferring the
technology to a foreign company, it is required to obtain prior
approval from the Minister of the Ministry of Knowledge Economy.
The recent amendments, however, go one step further to require such
companies to report to the Minister of the Ministry of Knowledge
Economy prior to approval of foreign investments (e.g.,
mergers/acquisitions or joint investments by foreign entities) at
the company level - and not just sales or transfers of the
technology itself. The precise scope of transactions to which this
reporting requirement will apply will be determined by a separate
In addition, in the event the overseas transaction at issue is determined to pose a serious risk to national security, the Minister of the Ministry of Knowledge Economy may order various measures to address the risk, such as an order to suspend, prohibit or even unwind the transaction.
- Request for injunctions against industrial technology infringement are now permitted: Under the recent amendments, if an infringement of (or attempt to infringe) industrial technology results in damages to an entity's profits, or exposes an entity to the risk of such damages, the entity may request an injunction from the court to block or prevent the infringement. As a result of the amendments, there are now clear statutory grounds for requesting injunctions to block or prevent industrial technology infringements. Moreover, in the event industrial technology is infringed upon or leaked, the Minister of the Ministry of Knowledge Economy and the head of the appropriate investigative authority may take discretionary measures necessary to block the infringement or leakage, even if these measures are not requested by the relevant company.
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