[Edaily Choi Oh-hyun Reporter] While the scope of advanced technology leaks—ranging from entire semiconductor manufacturing processes to training materials for new employees—is expanding, blind spots in technology protection still exist. In particular, there have been repeated instances where executives and employees of some domestic semiconductor companies have used company trade secrets as their “bargaining chip” when moving to Chinese firms, yet they are still acquitted.

This is because courts strictly determine which technologies qualify for protection based on government regulations and other official notices. Technologies not included in these notices may go unprotected, potentially missing the critical window of opportunity. Even for technologies listed in the notices, there are cases where the court does not recognize them as advanced technologies.

Despite the Ministry of Trade, Industry and Energy’s Opinion That “It Is Advanced Technology”… Court Rules “Not Guilty”

According to the court rulings on the SK hynix image sensor (CIS) technology leak case and the SamsungElectronics DRAM process technology leak case analyzed by Edaily on the 2nd, the court ruled the leaks not guilty if the technology—even if included in the official notice—had no direct connection to the manufacturing process. The court issued the not-guilty verdicts, stating that even technologies already recognized by the industry as cutting-edge core technologies could not be considered as technologies listed in the official notice.

Under current law, to be punished for the crime of industrial technology leakage, the leaked technology must be advanced technology or national core technology that significantly affects national security and the national economy, or it must constitute a trade secret. The designation and deregistration of advanced technology and national core technology are reviewed periodically by the Ministry of Trade, Industry and Energy and announced through official gazette. The process from committee review to official gazette publication takes about half a year.

Mr. A, a former SK hynix employee, received a final sentence of one year and six months in prison on the 13th of last month after being found guilty of violating the Industrial Technology Protection Act and the Unfair Competition Prevention Act, among other charges. While working in customer support (CS) related to the CIS manufacturing process at a local subsidiary in China, he printed 186 pages of trade secret documents and took 5,900 photographs of them, which he removed from the premises while preparing to join HiSilicon, a subsidiary of Huawei, in 2022. The materials were used to prepare his resume and apply for the position. After failing to secure the job despite handing over some of the materials, he reused them when applying to another Chinese company.

The trial court stated, “If the leakage of technical information to overseas competitors is treated lightly, it will cause immense damage to companies and lead to a weakening of national competitiveness, warranting severe punishment,” but it also reflected in its sentencing the fact that the information in question did not directly pertain to CIS manufacturing. In particular, regarding the “hybrid bonding” technology among the leaked materials, while the Ministry of Trade, Industry and Energy opined that it “constitutes advanced technology,” the court ruled the act of leaking that technology not guilty, stating that “there was insufficient evidence.” The court reasoned that while the act of removing the materials itself was highly reprehensible, it was unclear whether the technology in question was subject to protection as defined by the relevant ordinance.

Hybrid bonding technology eliminates “bumps” when bonding semiconductor chips and connects the chip surfaces directly; it is a core technology to be applied to next-generation High Bandwidth Memory (HBM). The industry regards it as a next-generation core packaging technology aimed at the era of high-stacking HBM with 16 layers or more.

Industry: “Also Considering Ways to Bridge the Gap Until the Notice Is Issued”

The SamsungElectronics case is similar. Mr. B, who worked at SamsungElectronics for 21 years, moved to China’s Changxin Memory Technology (CXMT) in 2016 to oversee DRAM development. Just one month after joining the company, he launched a “17–18-nanometer DRAM development project” and recruited engineers with experience in SamsungElectronics’ eight major semiconductor processes. They used a method of copying process information onto notebooks and smuggling them out. This included the sequence of 615 processes, equipment model numbers, and even the arbitrary names SamsungElectronics used to conceal materials.

Mr. B, who was indicted on charges including violation of the Industrial Technology Protection Act, received a final sentence of 6 years and 4 months in prison and a fine of 200 million won. Several defendants were implicated in the DRAM technology leak; another key researcher, Mr. C, was sentenced to 7 years in prison in the first trial.

However, the court in Mr. B’s first-instance trial also ruled that the technical information related to atomic layer deposition (ALD) equipment among the leaked materials could not be considered “advanced technology” under the Industrial Technology Protection Act, and thus acquitted him of that charge. Furthermore, although ALD equipment technology had already been designated as advanced technology in a Ministry of Trade, Industry and Energy notice, the court held that not every component or blueprint constituting the equipment was subject to protection. The court stated, “If we were to consider that all technologies necessary to implement that technology or product constitute advanced technology, the scope of punishment could become infinitely broad.”

The court’s strict scrutiny of whether a technology qualifies for protection stems from the principle of legality, which holds that “punishment may only be imposed for acts explicitly defined as crimes by law.” The problem is that the court never requested additional explanations from government agencies. Experts expressed concern that, in such cases, the definition of advanced technology could become dependent on the interpretation of individual courts. Disputes over whether a technology qualifies for protection could recur in court.

There are also calls from the industry to reform the system so that rapidly evolving technologies can be promptly incorporated into the legal framework for protection. Lee Kyu-bok, a special professor at Inha University (and former president of the Korea Semiconductor Engineering Society), pointed out, “Core advanced technologies are selected periodically based on the opinions of relevant government agencies and the industry, following deliberation and resolution by the Industrial Technology Protection Committee.” He added, “However, even if the committee approves a technology, there is a time lag before it is officially designated. Therefore, we need to consider measures to prevent legal loopholes during that period and ensure that new technologies are protected.”