(a) is sufficiently supported by its disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention, as of the filing date; and
(b) is capable of industrial application if it has a specific, substantial and credible utility.
9, The Parties shall endeavour to establish a framework for cooperation between their respective patent offices as a basis for progress towards the mutual exploitation of search and examination work.
Article 13.9. Enforcement of Intellectual Property Rights
General Obligations
1. For greater certainty, the obligations specified in this Article are limited to the enforcement of intellectual property rights, or, if mentioned, a particular intellectual property right.
2. Each Party shall provide that final judicial decisions or administrative rulings of general application for the enforcement of intellectual property rights be in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions or rulings are based. Each Party shall also provide that those decisions or rulings be published or, where publication is not practicable, otherwise made available to the public, in its national language in such a manner as to enable governments and right holders to become acquainted with them.
3. Each Party shall publicise information on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative and criminal systems, including any statistical information that the Party may collect for such purposes.
4. In civil, criminal, and if applicable, administrative procedures involving copyright or related rights, each Party shall provide for a presumption that the person whose name is indicated as the author, producer, performer, broadcasting organisation or publisher of the work, performance, phonogram or broadcast in the usual manner is the designated right holder in such work, performance, phonogram or broadcast. Each Party shall also provide for a presumption that in the absence of proof to the contrary, the copyright or related right subsists in such subject matter in accordance with its law. In civil, administrative and criminal proceedings involving trademarks, each Party shall provide for a rebuttable presumption that a registered trademark is valid. In civil and administrative proceedings involving patents, each Party shall provide for a rebuttable presumption that a patent is valid, and shall provide that each claim of a patent is presumed valid independently of the validity of the other claims.
Civil and Administrative Procedures and Remedies
5. Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right.
6. Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder:
(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or
(ii) at least in the case of copyright or related rights infringement and trademark counterfeiting, the profits of the infringer that are attributable to the infringement, which may be presumed to be the amount of damages referred to in subparagraph (a)(i); and
(b) in determining damages for infringement of intellectual property rights, its judicial authorities may consider, inter alia, the value of the infringed good or service, measured by the market price, the suggested retail price, or other legitimate measure of value submitted by the right holder.
7. Each Party shall provide that its judicial authorities, except in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning copyright or related rights infringement, patent infringement, or trademark infringement, that the prevailing party shall be awarded payment by the losing party of court costs or fees and, at least in proceedings concerning copyright or related rights infringement or wilful trademark counterfeiting, reasonable attorney's fees. Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party shall be awarded payment by the losing party of reasonable attorney's fees.
8, In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure of allegedly infringing goods, materials and implements relevant to the act of infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement.
9. Each Party shall provide that:
(a) in civil judicial proceedings, at the right holder's request, goods that have been found to be pirated or counterfeit shall be destroyed, except in exceptional circumstances;
(b) its judicial authorities shall have the authority to order that materials and implements that have been used in the manufacture or creation of such pirated or counterfeit goods be, without compensation of any sort, promptly destroyed or, in exceptional circumstances, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimise the risks of further infringements; and
(c) in regard to counterfeit trademarked goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of goods into the channels of commerce.
10. Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide, for the purposes of collecting evidence, any information that the infringer possesses or controls regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of the infringing goods or services and to provide this information to the right holder or the judicial authorities in the proceedings.
11. Each Party shall provide that its judicial authorities have the authority to:
(a) impose sanctions, in appropriate cases, on a party to a civil judicial proceeding who fails to abide by valid orders issued by such authorities; and
(b) impose sanctions on parties to a civil judicial proceeding, their counsel, experts, or other persons subject to the court's jurisdiction, for violation of judicial orders regarding the protection of confidential information produced or exchanged in a proceeding.
12. In civil judicial proceedings concerning the acts described in Articles 13.5.9 and 13.5.10, each Party shall provide that its judicial authorities shall have the authority to order or award at least:
(a) provisional measures, including seizure of devices and products suspected of being involved in the proscribed activity;
(b) payment to the prevailing right holder at the conclusion of civil judicial proceedings of court costs and fees, and reasonable attorney's fees, by the party engaged in the proscribed conduct; and
(c) the destruction of devices and products found to be involved in the proscribed activity.
13. In civil judicial proceedings concerning the enforcement of intellectual property rights, each Party shall provide that its judicial authorities shall have the authority to order a party to desist from an infringement, for the purposes of, inter alia, preventing infringing imports from entering the channels of commerce and preventing their exportation, Each Party may also provide that its judicial authorities shall have the authority to order a party to a civil judicial proceeding to desist from the exportation of goods that are alleged to infringe an intellectual property right.
14. In the event that a Party's judicial or other competent authorities appoint technical or other experts in civil judicial proceedings concerning the enforcement of intellectual property rights and require that the parties to the litigation bear the costs of such experts, the Party should seek to ensure that such costs are closely related, inter alia, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings.
Alternative Dispute Resolution
15. Each Party may permit use of alternative dispute resolution procedures to resolve civil disputes concerning intellectual property rights.
Provisional Measures
16. Each Party's judicial authorities shall act on requests for provisional measures inaudita altera parte expeditiously.
17. Each Party shall provide that its judicial authorities have the authority to require the applicant, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant's right is being infringed or that such infringement is imminent, and to order the applicant to provide a reasonable security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to such procedures.
Special Requirements Related to Border Measures
18. Each Party shall provide that any right holder initiating procedures for its customs authorities to suspend release of suspected counterfeit or confusingly similar trademark goods, or pirated copyright goods into free circulation is required to provide adequate evidence to satisfy the competent authorities that, under the law of the importing Party, there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder's knowledge to make the suspected goods reasonably recognisable by its customs authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to these procedures. Each Party shall provide that the application to suspend the release of goods shall apply to all points of entry to its territory and remain applicable for a period of not less than one year from the date of application, or the period that the good is protected by copyright or that the relevant trademark registration is valid, whichever is shorter.
19. Each Party shall provide that its competent authorities shall have the authority to require a right holder initiating procedures to suspend the release of suspected counterfeit or confusingly similar trademark goods, or pirated copyright goods, to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that the security or equivalent assurance shall not unreasonably deter recourse to these procedures. Each Party may provide that the security may be in the form of a bond conditioned to hold the importer or owner of the imported merchandise harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good.
20. Where its competent authorities have seized goods that have been determined to be counterfeit or pirated, in accordance with its laws pertaining to the protection of personal information a Party shall provide that its competent authorities have the authority to inform the right holder of the names and addresses of the exporter, consignor, importer or consignee, and provide to the right holder a description of the merchandise, the quantity of the merchandise and, if known, the country of origin of the merchandise.
21. Each Party shall provide that its customs authorities may initiate border measures ex officio with respect to imported merchandise that is suspected of being counterfeit or confusingly similar trademark goods, or pirated copyright goods.
22. Each Party shall provide that goods that have been suspended from release by its customs authorities, and that have been forfeited as pirated or counterfeit, shall be destroyed, except in exceptional circumstances. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of the goods into the channels of commerce. In no event shall the competent authorities be authorised, except in exceptional circumstances, to permit the exportation of counterfeit or pirated goods or to permit such goods to be subject to other customs procedures.
23. Where an application fee or merchandise storage fee is assessed in connection with border measures to enforce a trademark or copyright, each Party shall provide that the fee shall not be set at an amount that unreasonably deters recourse to these measures.
24. Each Party shall provide the other Party, on mutually agreed terms, with technical advice on the enforcement of border measures concerning intellectual property rights, and the Parties shall promote bilateral and regional cooperation on these matters.
Criminal Procedures and Remedies
25. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Each Party shall treat wilful importation or exportation of counterfeit or pirated goods as unlawful activities subject to criminal penalties.
26. Further to paragraph 25, each Party shall provide:
(a) penalties that include sentences of imprisonment as well as monetary fines sufficient to provide a deterrent to future infringements, consistent with a policy of removing the infringer's monetary incentive. Each Party shall further encourage judicial authorities to impose those penalties at levels sufficient to provide a deterrent to future infringements;
(b) that its judicial authorities shall have the authority to order the seizure of suspected counterfeit or pirated goods, any related materials and implements used in the commission of the offense, any documentary evidence relevant to the offense, and any assets traceable to the infringing activity. Each Party shall provide that such orders need not individually identify the items that are subject to seizure, so long as they fall within general categories specified in the order;
(c) that its judicial authorities shall have the authority to order, among other measures, the forfeiture of any assets traceable to the infringing activity, and
(d) that its judicial authorities shall have the authority to order: @ the forfeiture and destruction of all counterfeit or pirated goods; and (ii) at least with respect to wilful copyright and related rights piracy and counterfeiting on a commercial scale, the forfeiture and/or destruction of materials and implements that have been predominantly used in the creation of pirated or counterfeit goods.
Each Party shall further provide that forfeiture and destruction under subparagraphs (c) and (d) shall occur without compensation of any kind to the defendant.
27. Each Party shall provide for criminal procedures and penalties to be applied against any person who, without authorisation of the holder of copyright or related rights in a cinematographic work, knowingly makes a copy of or transmits to the public the cinematographic work, from a performance of the cinematographic work, in an exhibition facility open to the public.
Special Measures against Repetitive Copyright Infringers on the Internet
28. Each Party shall provide measures to curtail repeated copyright and related right infringement on the Internet.
Limitations on Liability for Online Service Providers
29. In accordance with Article 41 of the TRIPS Agreement, for the purpose of providing enforcement procedures that permit effective action against any act of copyright infringement covered by this Chapter, each Party shall provide:
(a) legal incentives for online service providers to cooperate with copyright owners in deterring the unauthorised storage and transmission of copyrighted materials; and
(b) limitations in its law regarding the scope of remedies available against online service
providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf.
Article 13.10. Understandings Regarding Certain Public Health Measures
1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 (hereinafter referred to as the "Doha Declaration") by the Ministerial Conference of the WTO. In interpreting and implementing the rights and obligations under Article 13.8, the Parties are entitled to rely upon the Doha Declaration.
2. Each Party shall contribute to the implementation of and shall respect the Decision of the WTO General Council of 30 August 2003 on paragraph 6 of the Doha Declaration, as well as the Protocol amending the TRIPS Agreement, done at Geneva on 6 December 2005.
Article 13.11. Transitional Provisions
1. Each Party shall give effect to this Chapter on the date of entry into force of this Agreement.
2. Notwithstanding paragraph 1, Korea shall fully implement the obligations of Article 13.5.5 within two years of the date of entry into force of this Agreement.
Article 13.12. Committee on Intellectual Property
1. The Committee on Intellectual Property established in accordance with Article 21.4 (Committees and Working Groups) shall comprise officials of each Party.
2. The Committee shall:
(a) review, monitor and assess the implementation of this Chapter;
(b) discuss and make recommendations in relation to cooperative activities under this Chapter;
(c) exchange information on legal and policy developments on intellectual property rights, including geographical indications and common names;
(d) discuss and seek resolution of any matter arising under this Chapter; and
(e) carry out any other functions as may be agreed by the Parties in order to ensure the implementation of this Chapter.
3. The Committee shall meet every year, in principle, or as otherwise agreed. The date, location and agenda of each meeting will be jointly decided through consultations between the contact points.
4, For the purposes of this Article, the contact point shall be, unless otherwise notified:
(a) for Australia, the Department of Foreign Affairs and Trade, or its successor; and
(b) for Korea, the Ministry of Trade, Industry and Energy, or its successor.
Article 13.13. Definitions
For the purposes of Articles 13.5 and 13.7, the following definitions shall apply with respect to performers, producers of phonograms and broadcasting organisations:
broadcasting means the transmission to the public by wire or wireless means of sounds or sounds and images, or representations thereof, including wire or wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organisation or with its consent, but does not include transmissions over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public;
communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram;
effective technological measure means any technology, device or component that, in the normal course of its operation, controls access to a protected work or other subject matter, or protects any copyright or related rights covered by this Chapter;
fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
geographical indications means indications that identify a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the goad is essentially attributable to its geographical origin;
performers means actors, singers, musicians, dancers, and other natural persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;
phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;
producer of a phonogram means the person who takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds;
publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity;
rights management information means any information provided by right holders which identifies the protected work or other subject matter covered by this Chapter, the author or any other right holder, or information about the terms and conditions of use of the protected work or other subject matter covered by this Chapter, and any numbers or codes that represent such information. It applies when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of a protected work or other subject matter covered by this Chapter; and
WIPO means World Intellectual Property Organization.
Chapter 14. Competition Policy
Article 14.1. Objectives
The Parties recognise the importance of implementing policies that promote competition, economic efficiency and consumer welfare, cooperating on matters covered by this Chapter, and curtailing anticompetitive practices which have the potential to restrict bilateral trade and investment.
Article 14. Promotion of Competition
1. Each Party shall promote competition by addressing anticompetitive practices in its territory, including by maintaining competition laws, and adopting and enforcing such measures as it deems appropriate and effective to counter such practices.
2. Each Party shall maintain an authority or authorities responsible for the enforcement of its competition laws. The enforcement policy of each competition authority shall include treating persons of the other Party no less favourably than persons of the Party in like circumstances.
Article 14.3. Application of Competition Laws
1. Any measures taken by a Party to proscribe anticompetitive practices and the enforcement actionstaken pursuant to those measures shall be consistent with the principles of transparency, timeliness, non- discrimination, comprehensiveness and procedural fairness.
2. Each Party shall ensure that all businesses are subject to competition laws in force in its respective territory. 3. Notwithstanding paragraph 2, a Party may exempt specific businesses or sectors from the application of competition laws, provided that such exemptions are transparent and are undertaken on the grounds of public policy or public interest.
Article 14.4. Competitive Neutrality
The Parties recognise the importance of ensuring that governments at all levels in their territories do not provide any competitive advantage to any state enterprise in its business activities as a result of it being a state enterprise. This Article shall apply to the business activities of state enterprises and not to their non-business, non-commercial activities. The application of this Article shall not obstruct the performance of the particular public tasks assigned to them.
Article 14. Cooperation
1. The Parties recognise the importance of cooperation and coordination to further the promotion of competition and the curtailment of anticompetitive practices.
2. The Parties may cooperate and coordinate, as appropriate, in developing and enforcing competition laws and policies, including through the exchange of information, notification, technical cooperation and coordination on cross-border enforcement matters, utilising their existing mechanisms for cooperation including the Cooperation Arrangement between the Australian Competition and Consumer Commission and the Fair Trade Commission of the Republic of Korea Regarding the Application of Their Competition and Consumer Protection Laws.
Article 14.6. Notifications
1. Each Party shall, through its competition authority, notify the competition authority of the other Party of an enforcement activity if it considers that such enforcement activity may substantially affect important interests of the other Party.
2. The notification shall take place at an early stage of the enforcement activity, provided that it is not contrary to the laws of the Parties and does not affect any investigation being carried out.
Article 14.7. Consultations
1. On request of a Party, the Parties shall consult with a view to curtailing particular anticompetitive practices that affect trade or investment between the Parties.
2. Nothing in this Article shall limit the discretion of the competition authority of a Party to decide whether to take action following consultations.
Article 14.8. Cross-border Consumer Protection
The Parties shall promote cooperation and coordination on matters related to consumer protection, including in the enforcement of their consumer protection laws.
Article 14.9. Dispute Settlement
Neither Party shall have recourse to dispute settlement under this Agreement for any matter arising under this Chapter.
Article 14.10. Definitions
For the purposes of this Chapter:
anticompetitive practices means business conduct or transactions that adversely affect competition, such as:
(a) anticompetitive agreements or arrangements between enterprises; (b) abuse of dominance; and
(c) anticompetitive mergers and acquisitions or other anticompetitive structural combinations of enterprises;
competition laws means:
(a) for Australia, the Competition and Consumer Act 2010, and any regulations relating to Parts IV and XI A; and provisions of other Parts in so far as they relate to Part IV, but not including Part X, including their amendments and replacements; and
(b) for Korea, the Monopoly Regulation and Fair Trade Act and its implementing regulations, including their amendments and replacements; and
consumer protection laws means:
(a) for Australia, the Australian Consumer Law, and any regulations relating to the Australian Consumer Law, in the Competition and Consumer Act 2010, including their amendments and replacements; and
(b) for Korea, the Framework Act on Consumers, the Fair Labelling and Advertising Act and their implementing regulations, including their amendments and replacements.
Chapter 15. Electronic Commerce
Article 15.1. Objectives
The Parties recognise the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development and the applicability of the WTO Agreement to measures affecting electronic commerce.
Article 15.2. Electronic Supply of Services
The Parties affirm that measures affecting the supply of a service delivered or performed electronically are subject to the obligations contained in the relevant provisions of Chapters 7 (Cross-Border Trade in Services), 8 (Financial Services) and 11 (Investment), subject to any exceptions or non-conforming measures set out in this Agreement that are applicable to such obligations.
Article 15.3. Customs Duties
Neither Party shall impose customs duties on electronic transmissions between the Parties.
Article 15.4. Domestic Regulation
1. Each Party shall adopt or maintain measures regulating electronic commerce taking into account the UNCITRAL Model Law on Electronic Commerce and, as appropriate, other international standards, guidelines and recommendations.
2. Each Party shall endeavour to:
(a) minimise the regulatory burden on electronic commerce; and
(b) ensure that its measures regulating electronic commerce support industry-led development of electronic commerce.
Article 15.5. Electronic Authentication and Electronic Signatures
1. Each Party shall adopt or maintain measures regulating electronic authentication that permit parties to an electronic transaction:
(a) to determine the appropriate authentication methods for that transaction; and
(b) to have the opportunity to establish before judicial or administrative authorities that their electronic transaction complies with legal requirements with respect to authentication.
2. Notwithstanding paragraph 1, where prescribed by a Party's laws and regulations, a Party may require that, for transactions where a high degree of reliability and security is required, such as electronic financial transactions, the method of authentication meet certain security standards or be certified by an authority accredited in accordance with the Party's laws or policies.
3. The Parties shall work towards the mutual recognition of electronic signatures issued by either Party, based on internationally accepted standards.
4. The Parties shall work towards interoperability of electronic signatures issued by either Party.
Article 15.6. Online Consumer Protection
1. Each Party shall adopt or maintain measures to protect consumers engaged in electronic commerce, which are at least equivalent to those provided for consumers engaged in other forms of commerce.
2. The Parties recognise the importance of cooperation between their respective national consumer agencies on activities related to cross-border electronic commerce in order to enhance consumer welfare.