1. Patent right
How long does a patent right take effect?: A patent right takes effect from the date of establishment registration, and the patent right expires 20 years after the filing date. However, in the case of an application by a party right holder for an application (patent) by a non-righted person, a divisional application, or a modified application, the duration of the patent right expires when the filing date is retrospectively and 20 years from the original application date (or the filing date of the non-proprietor).
Which of the following is not a case where the passive effect of a patent is not limited? Implementation for research or testing/implementation of known technology/implementation before recovery of patent right is a case of passive effect limitation. In the case of parallel imports of genuine patented products, skepticism prevails about the acceptance of such imports.
1) Occurrence of Patent
- After the examiner makes a patent decision on the patent application, if the patent applicant pays the patent fee for the first three years within the statutory period, the Commissioner of the Korean Intellectual Property Office registers the establishment of the patent
2) Effects and limits of the effects of a patent
. Effect of patent right: positive effect (exclusive right) and retroactive effect (exclusive right)
- Restrictions on the validity of patent rights
3) Scope of validity of patent rights
- Time range: 20 years from the date of registration of establishment
- Location scope: domestic (territorialism)
- Content Scope: Patent Claims (Specification)
4) Sharing and Extinction of Patent Rights
- Sharing of patent rights: The consent of other co-owners is required when transferring shares, establishing a pledge, or establishing a license
- Expiration of patent right: expiration of duration, non-payment of patent fee, absence of an heir, waiver of right, invalidation due to invalidation trial
2. License
- If a person who intends to practice a patented invention has only entered into a contract to establish an exclusive license with the patentee, does the licensee have an exclusive license under the Patent Act? Therefore, if there is only an exclusive license establishment contract between the parties, such license may be interpreted as a normal license rather than an exclusive license.
- Among the statutory licenses, the due diligence right that does not require payment is a non-exclusive license for prior use.
1) Exclusive license
- The right to exclusively practice the patented invention as a business within the scope set by a third party other than the patentee
- Establishment contract + Registration with the Korean Intellectual Property Office
2) Normal license
- exclusive license by permission: Establishment contract
3) Legal license
- A non-exclusive license based on an employee's invention, a non-exclusive license for a patent right after the expiry of the additional payment period for patent fees, a non-exclusive license by prior use, a non-exclusive license by execution before the registration of a request for invalidation trial, a non-exclusive license after the expiration of the duration of the design right, and the exercise of pledge Non-exclusive license resulting from the transfer of patent rights due to a non-exclusive license, the prior user's non-exclusive license for a patent right restored by retrial, and the non-exclusive license of the original holder who lost the non-exclusive license due to the retrial
4) Compulsory license
- Non-exclusive license as necessary for national defense, non-exclusive license based on finance, non-exclusive license based on non-exclusive license grant trial
3. Trial and trial decision cancellation litigation
- Is it possible to appeal if a trial decision is cited in the appeals trial against the decision of refusal? - In a trial against the decision of rejection, only the applicant exists and the respondent does not exist, and only those who have lost in the trial can appeal. However, in the case of a citation trial decision in the trial against the decision of rejection, there is a claimant who won, but there is no respondent, so it is impossible to appeal against it.
- In the patent adjudication system, in the case of invalidation trial, the presiding judge shall serve a copy of the claim on the respondent and give him an opportunity to submit an answer within a fixed period
- In the patent adjudication system, the principle of unanimity cannot be applied to the trial decision of the trial for the rejection decision.
- In the patent trial system, a claimant who has received a trial decision to dismiss in a trial against decision of rejection may file a lawsuit with the Patent Court within 30 days from the date of receipt of a certified copy of the trial decision.
- Participation will not be accepted in the case of a trial against the decision of rejection. Participation will not be accepted in the case of a decision-based trial such as a trial against rejection of a decision. Originally, joint inventions must be filed jointly and a joint trial must be made jointly.
1) Patent trial
- Significance: A special administrative trial conducted by a group of judges of the Intellectual Property Trial and Appeal Board to resolve a disposition made by an examiner on a patent application or a dispute regarding the patent right granted by the disposition
- Types of Patent Trial: Inter-Party Trial, Decision Trial
- Judgments between parties and adjudication are divided into 1) whether the participation system is recognized, 2) the burden of the trial cost, 3) the application of the discretionary principle, 4) whether a copy of the request for adjudication is served and whether an answer is submitted, and 5) whether or not the judgment is dissatisfied. do.
- Method examination of the presiding judge (if the requirements are violated, the presiding judge dismisses the decision of the request for adjudication), legality hearing (trial decision dismissed if inappropriate), trial on merits (trial decision on citation, trial decision on dismissal)
2) Litigation for revocation of trial decision
- Concept: Among patent litigation in the broadest sense, it belongs to the exclusive jurisdiction of the Patent Court and refers only to litigation against trial decisions and decisions to dismiss a request for trial or retrial
- Parties to the trial decision cancellation lawsuit: Plaintiff (Participant, intervenor, person who applied for intervention but the application is rejected, and only the requester of the trial in the case of a trial based on the decision system), the defendant (the Commissioner of the Korean Intellectual Property Office becomes the defendant in the case of a trial based on the decision system).
- Presiding Judge's complaint review (judgment of dismissal of complaint in case of violation), legality hearing (judgment of dismissal if inappropriate), trial on merits (judgment of citation, judgment of dismissal)
- Dissatisfaction: Submit an appeal to the Patent Court, the original court, within two weeks from the date the original judgment was served
4. Patent infringement lawsuit
- If the component of a patented invention is “A + B + C” and a third party implements it as “A + B”, does this implementation infringe the patent right? Infringement must comply with the all elements rule. Therefore, if a component of the patented invention is “A + B + C” and a third party implements “A + B”, the implemented invention does not constitute an infringement of the patent right because there is no component C.
- In case of patent infringement, civil remedies include a claim for damages, a request for an injunction against infringement, and a request for credit recovery.
1) Patent infringement
- Infringement of patent right: An act of performing the patented invention as a business by a third party without a legitimate right while the patent right is still in existence
- Requirements for infringement of a patent right: It must be practiced while the patent right is still in existence, it must be practiced by a person without a legitimate right, the invention must be practiced within the scope of protection of the patented invention, and it must be practiced as a business
- Literary Infringement: Judgment according to the law of completeness of components
- Conditions for establishment of equal damage: The principle of solving the problem must be common, there must be possibility of substitution, there must be easy substitution, that the invention to be confirmed is not publicly known technology, and there are no special circumstances such as conscious exclusion
2) Remedies in case of patent infringement
- Civil remedies: claim for prohibition and prevention of infringement (or request for injunction), claim for damages, claim for credit recovery, claim for unfair profit return
- Criminal Remedy Measures: Infringement of patent rights (up to 7 years in prison or a fine of up to 100 million won, written notice, penalty provisions)
* I am a student learning IP, not an IP expert. Translation is also Google Translator and my poor English skills. I would like to convey about IP from the point of view of a person learning IP. I hope it will help others in a similar situation to mine.
* The above is what I saw and learned in Professor Koo's intellectual property lecture. “https://cb.ipacademy.net/main.do”. It is accessible via You may not be able to view without logging in
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