Introduction
Suppose a company is sued by a competitor for patent infringement, and the court finds actual damages of KRW 1 billion (roughly USD 700,000). If the panel then finds that the defendant's infringement was willful, the award can be enhanced up to fivefold — as much as KRW 5 billion. That is the basic architecture of Korea's enhanced-damages regime under the Patent Act, first introduced in 2019 and expanded in 2024.
Enacting the statute, however, did not settle how it would be applied. Korean courts and commentators spent years divided over how far the word "willful" should reach — where ordinary carelessness ends and culpable appropriation begins. This piece traces how that question has been resolved, using the evolution of the underlying U.S. case law and a 2024 Patent Court decision as the throughline.
1. Korea's Enhanced-Damages Regime Today
Article 128(8) of the Korean Patent Act allows a court, where infringement of a patent or an exclusive license is found to be willful, to award up to five times the damages otherwise proven. The cap started at treble damages when the provision took effect in January 2019, and was expanded to a fivefold cap by a February 2024 amendment (effective August 2024). Korea now sits alongside China at the top of the global range for statutory multipliers on willful IP infringement.
Article 128(9) sets out eight factors courts must weigh in setting the actual multiplier:
- whether the infringer held a position of economic dominance over the rights holder
- the degree to which the infringer was aware of, or recklessly disregarded, the risk of infringement
- the extent of harm suffered by the patentee or exclusive licensee
- the economic benefit the infringer derived from the infringement
- the duration and frequency of the infringing conduct
- any criminal penalties, such as fines, imposed for the infringement
- the infringer's financial condition
- the infringer's efforts to remedy the harm
In other words, the threshold for "willfulness" itself is set fairly broadly, but once willfulness is found, the actual multiplier is not left to unstructured judicial discretion — it is anchored to a checklist of statutory factors.
2. How U.S. Case Law Got There
To understand where Korea's regime came from, it helps to trace the history of "willful infringement" under U.S. patent law — the original template for statutory enhanced damages. The standard has swung through three distinct eras, each tracking a different innovation-policy mood.
Phase one (1983, Underwater Devices): The Federal Circuit imposed an affirmative duty of due care on anyone who became aware of another's patent — obtaining a competent opinion of counsel before proceeding, among other things. Under that regime, a defendant could be found willful for having simply failed to investigate, even absent any bad faith, and companies responded by over-investing in defensive freedom-to-operate opinions for every new product.
Phase two (2007, In re Seagate Technology): Sitting en banc, the Federal Circuit scrapped the affirmative-duty rule and adopted a two-part test: a patentee first had to show that the infringer's conduct was objectively reckless, and then that the risk was known or so obvious it should have been known to the infringer — all under a heightened clear-and-convincing-evidence standard. In practice, this objective prong let a defendant escape enhanced damages by conjuring up a reasonable-looking invalidity or non-infringement defense after the fact, even one the court ultimately rejected, regardless of what the defendant actually believed at the time it infringed.
Phase three (2016, Halo Electronics v. Pulse Electronics): The Supreme Court discarded Seagate's rigid two-part test and redirected the inquiry back to the infringer's subjective knowledge and culpability at the time of the infringing conduct, rather than to defenses cooked up for trial. The Court also relaxed the evidentiary standard to the ordinary civil preponderance-of-the-evidence standard. And under 35 U.S.C. § 298, enacted as part of the 2011 America Invents Act, a defendant's failure to obtain an opinion of counsel cannot, by itself, be used to prove willfulness.
The lesson from this arc is that the closer the inquiry stays to what the infringer actually believed at the time it acted, the more the regime does what it is supposed to do — and that where the burden of proof is set matters as much as the substantive standard itself.
3. Korea's Interpretive Debate: How Far Does "Willful" Reach?
For some time, Korean courts and scholars pulled in different directions on what "willful" in Article 128(8) actually meant. Some argued it should be read as broadly as intent is read under the Civil Act, reaching conditional intent (dolus eventualis). Others argued that, to give the regime real deterrent bite, it should extend to gross negligence, as in the U.S. approach. Still others, worried about chilling legitimate R&D, argued the provision should be confined to cases of outright, intentional misappropriation from the start. Because the answer could swing outcomes dramatically case by case, the bar needed a clarifying decision.
4. The Cookware Lid Case: Where the Court Drew the Line
That clarifying decision came in the Patent Court's October 31, 2024 judgment in Case No. 2023Na11276. The facts were as follows.
A small kitchenware manufacturer (the plaintiff) held a patent on a sealed cooking-vessel lid using a particular gasket structure. The defendant, which had a business relationship with the plaintiff, learned of the patent as early as 2015 and entered licensing negotiations over royalties — negotiations that ultimately broke down. Yet starting around November 2015, while those negotiations were still ongoing, the defendant began manufacturing and selling vacuum pots embodying the patented feature without authorization. The plaintiff sent a cease-and-desist letter in February 2019, which the defendant ignored, continuing sales; in June of that year the defendant went on the offensive, filing both an invalidity petition and a request for a negative scope-of-right confirmation. Both were rejected by the Korean Intellectual Property Trial and Appeal Board in December 2020, and the defendant lost the follow-on appeal as well, with judgment becoming final in August 2021 — yet it kept selling the product until October 2022.
On these facts, the Patent Court found willful infringement. The significant part of the decision is that the court expressly defined what "found to be willful" means: an infringer acting while aware that its conduct will result in patent infringement, a definition that captures not only dolus directus (direct intent) but also dolus eventualis — conditional or contingent intent. It bears noting, however, that this case was decided under the pre-2024 version of the statute, when the cap was still three times damages, not the current fivefold cap. Weighing the Article 128(9) factors — the defendant's superior bargaining position, the degree of willfulness, the duration and frequency of infringement, the economic benefit obtained, its financial condition, and its remediation efforts — the court awarded a 2x multiplier. That is a double enhancement under the old 3x cap, not under today's 5x cap, and the distinction matters for anyone citing the case going forward.
The court also declined to credit the defendant's reliance on a patent attorney's non-infringement/invalidity opinion or on a change in management as evidence cutting against willfulness. The opinion had been prepared well after the infringement began, expressly disclaimed any binding legal effect, and was ultimately proven wrong by the litigation itself.
5. Conditional Intent vs. Advertent Negligence: Drawing the Line
The most consequential aspect of this decision for practice is that it imported a distinction long used in Korean criminal law — between conditional intent (dolus eventualis) and advertent (conscious) negligence — into the patent-infringement context. Under Korean Supreme Court precedent (e.g., its June 25, 1985 decision, Case No. 85Do660), what separates the two is not whether the actor recognized the possibility of the result, but whether the actor's state of mind reflected acceptance, or acquiescence, in that result occurring.
Mapped onto patent infringement: a company that knew of a competitor's patent, attempted a design-around, concluded in good faith "this should clear the claim," and launched — only to be found infringing later — will generally, even if that judgment was careless, fall on the advertent-negligence side of the line, closer to gross negligence. By contrast, a company that recognized a substantial risk of infringement, calculated that the expected upside outweighed the eventual damages exposure, and knowingly proceeded anyway has conditional intent. The latter treats infringement as a calculated cost of doing business — precisely the conduct the fivefold enhanced-damages regime is built to target.
U.S. case law offers an analogous concept: willful blindness, which treats deliberate avoidance of confirming a known risk as tantamount to actual knowledge. Korea, as a codified civil-law jurisdiction, has less room to construct that kind of judge-made fiction of intent from case law alone. As a practical matter, Korean practitioners tend to treat evidence of organizational concealment not as intent in itself, but as circumstantial evidence supporting a finding of conditional intent — a more workable approach within the civil-law framework.
6. A Difference in Philosophy: Deterrence or Make-Whole Relief?
Korean and U.S. courts appear to approach this remedy with somewhat different centers of gravity. U.S. punitive damages read, on balance, as primarily a matter of judicial sanction and deterrence — punishing morally blameworthy conduct as such. Korea's enhanced-damages provision, by contrast, seems to combine that deterrent purpose with a genuine compensatory goal: making the rights holder whole. Intangible harm from infringement, lost first-mover advantage, and litigation costs are all things ordinary damages calculations in Korean civil litigation tend to under-capture, and enhanced damages appear to plug some of that gap. The granular, almost accounting-style character of the eight Article 128(9) factors is consistent with that compensatory function. U.S. courts, by contrast, tend to focus less on whatever shortfall the patentee may not be fully compensated for and more on the subjective egregiousness and moral culpability of the infringing conduct itself, calibrating the multiplier to the sanction warranted — an exercise of the court's own equitable discretion. That framing makes a discretionary multiplier a natural fit. Under Korean law, moreover, even conduct that falls short of "willful" — conscious gross negligence — can, depending on the facts, still be found to constitute willful infringement in a given case. That said, both systems in fact blend deterrence and compensation to some degree, and the distinction above is best read as a difference of emphasis rather than an airtight doctrinal divide.
7. The Defensive Value of Opinion Letters — and Its Limits
In practice, the most common defense to enhanced damages is a non-infringement or invalidity opinion from patent counsel. But in the cookware lid case, the fact that the court's rejection of that defense referenced not only the opinion's late timing — prepared, notably, after the litigation had already turned against the defendant — but also its boilerplate disclaimer language, has sent a real signal through the practicing bar. The more accurate reading, though, is that the boilerplate disclaimer language itself was not the problem; rather, the court weighed the years-long delay between the start of infringement and the opinion's preparation, together with the defendant's continued sales even after final judgment in the invalidity and scope-of-right proceedings went against it.
Even so, given that the court's decision referenced the presence of standard limitation-of-liability language, practitioners should expect the standard for evaluating an opinion's defensive value to sharpen — moving away from the mere presence or absence of boilerplate disclaimers and toward, as U.S. case law does, the substantive quality and timeliness of the analysis: whether it was prepared before the infringement began, whether it included a genuine claim chart, and whether it was authored by outside counsel independent of the client with genuine expertise in both patent law and the relevant technology. It would also be worth considering, along the lines of 35 U.S.C. § 298, codifying a rule that the mere absence of an opinion of counsel cannot itself be held against a defendant on the willfulness question.
8. The Structural Proof Problem — and the Rise of "K-Discovery"
The declining defensive value of opinion letters does not make a plaintiff's burden any lighter. Proving an infringer's conditional intent directly is close to impossible; plaintiffs are left to persuade the court through circumstantial evidence — how the defendant responded to a cease-and-desist letter, the parties' prior dealings, and the like. The evidence that would nail down those circumstantial facts, however, typically sits inside the infringer's own organization, and Korea, lacking anything like U.S.-style discovery, has historically given plaintiffs no real mechanism to reach it. A 2025 survey by Korea's patent office (now elevated to the Intellectual Property Administration) and the Korea Venture Business Association found that 73% of small and mid-sized companies that had suffered technology misappropriation identified difficulty gathering evidence as their single biggest obstacle in litigation.
Proposals to close that information asymmetry through a "Korean-style discovery" (K-Discovery) mechanism have circulated for more than a decade without gaining traction, largely due to industry opposition. That opposition has tended to rest more on apprehension than on airtight logic — much of it centered on the fear that an opaque foreign non-practicing entity (NPE) could sue a Korean conglomerate not really to win, but to use discovery as a lawful route into sensitive R&D files or trade secrets. Groups such as the Federation of Korean Industries have in fact opposed the mechanism on exactly those grounds, citing exposure to NPE targeting and rising litigation costs. The counterargument is that NPEs, by definition, do not manufacture or sell products and monetize patents rather than technology as such — meaning they would have comparatively little use for a defendant's R&D files or trade secrets to begin with, which suggests the fear may be somewhat overstated.
The breakthrough came on January 29, 2026, when the National Assembly passed amendments to the Act on the Promotion of Mutually Beneficial Cooperation Between Large Enterprises and Small and Medium Enterprises (the "SME Cooperation Act"). For damages actions arising from misappropriation of technical data, the amendment introduces, for the first time in Korean law, three mechanisms:
- fact-finding investigations conducted by court-appointed experts
- court orders preserving evidence
- party examinations, akin to depositions
Safeguards such as protective orders run alongside these mechanisms to address trade-secret concerns. The regime carries roughly a two-year grace period following promulgation, with implementation expected around 2028, and for now applies only within subcontracting relationships covered by the SME Cooperation Act — a fairly narrow pilot in scope. Similar amendments are already pending for the Patent Act and the Unfair Competition Prevention Act, and this amendment is widely viewed as a template for that follow-on legislation.
Conclusion
The cookware lid case illustrates how the enhanced-damages regime is settling into practice. By reading conditional intent into the concept of willfulness, the court preserved the regime's deterrent bite, while signaling it would not sweep in every case of advertent negligence that happens to result, after the fact, in a finding of infringement following a failed design-around. That is the balance the judiciary appears to be striking between protecting innovation and keeping liability proportionate to culpability.
That balance, though, is not a finished product. U.S. patent law, too, left the substantive content of willfulness undefined in the statute, leaving it to case law — and the operative standard has shifted with the innovation-policy climate of the day. Korea's enhanced-damages regime is unlikely to be any different. The line between protecting innovation and safeguarding a fair opportunity to defend will keep moving, and it will need to keep being recalibrated as the underlying environment changes.
This article is a general commentary based on published judicial decisions, statutes, and press releases. It does not constitute legal advice on any particular matter.
