[Exclusive] Trade Secret Access by 'Agent Review' Allowed During Unfair Trade Practice Investigations

Ministry of Trade, Industry and Energy to Promote Amendment of Unfair Trade Investigation Act
Recently Commissioned Research on Related Regulation Amendment Plan

The government is pushing to introduce a system that allows legal representatives to access trade secrets during investigations of unfair trade practices. This move aims to strengthen the response capabilities of affected companies, considering that trade secret information has recently become a key issue in determining patent infringement.

A Trade Commission official from the Ministry of Trade, Industry and Energy stated on the 17th, "We will pursue legislative amendments to introduce a 'legal representative limited access system' when investigating unfair trade practices."

Established in 1987, the Trade Commission operates trade remedy measures such as anti-dumping duties, countervailing duties, safeguards, and investigations into unfair trade practices to protect domestic industries from unfair trade acts like dumping or intellectual property (IP) infringement and to establish fair trade order. Among these, investigations into unfair trade practices involve probing IP infringements and violations related to country of origin labeling in exports and imports, sanctioning violating companies to protect domestic industries.

According to the Trade Commission, as of the end of March this year, out of 405 cumulative applications for investigations into unfair practices, IP infringement accounted for more than half with 262 cases. Among IP infringements, trademark infringement was the highest with 125 cases, followed by patent infringement with 87 cases.

A Trade Commission official explained, "In the past, when products made by infringing patents circulated in the market, we collected the products to determine infringement, but recently, it has become necessary to examine production methods and processes. However, because these are trade secrets, until now only the Trade Commission has been able to verify and determine infringement. Going forward, we plan to establish a 'legal representative limited access system' in the unfair trade investigation laws so that the legal representatives of affected companies, i.e., lawyers, can also view the trade secrets of suspected infringing companies."

The legal representative limited access system has already been introduced and operated by the Fair Trade Commission. The Fair Trade Commission restricts access and copying of trade secrets through its internal guideline, the "Guidelines on Access and Copying of Materials." However, if the respondent's legal representative requests limited access, they may view trade secrets under specified time, place, and method conditions. Accessors are required to submit a "Confidentiality Agreement" at this time.

To prevent the exposure of trade secrets when implementing the legal representative limited access system, the Trade Commission plans to pursue amendments to the unfair trade investigation law that will allow issuing confidentiality orders, unlike the Fair Trade Commission’s guidelines. Legal representatives who access trade secrets must not disclose or leak them to anyone. Violations will be subject to penalties.

To this end, the Ministry of Trade, Industry and Energy recently commissioned a study on "Amendment Plans for Regulations Related to Investigations of Unfair Trade Practices." The study will be conducted until October this year, and based on the results, a legislative amendment related to the legal representative limited access system will be prepared.

Additionally, considering that demand for investigation applications from companies is increasing but small and medium-sized enterprises (SMEs) face difficulties in appointing legal representatives and lack standardized templates when drafting investigation applications, standardized investigation application forms will also be revised and supplemented through analysis of investigation cases by unfair trade practice types (IP, origin, false or exaggerated advertising, etc.).