Today, we will look at intellectual property rights, especially “patent system and traditional overseas applications”.
1. Patent system: specification (application form)
1) Examination request system
A patent examination begins only when the inventor requests examination. A request for examination must be made within three years from the filing date, and, in general, specification examination is performed in the order of examination request. But, the speed of examination may vary depending on the technical field. In addition, there is a priority examination system that allows the inventor to receive an examination quickly by paying an express fee if desired.
2) Application Publication System
In Korea, after one year and six months, the application is published (and may be published earlier if the applicant desires), allowing a third party to utilize the applied technology.
3) Amendment System
Amendments can be made to an application until a certified copy of the patent decision is served. However, in the case of amendment due to notification of reasons for refusal, amendment can only be made within the prescribed period stipulated by law. In addition, amendments are possible only for existing content, and addition of new matters is prohibited by law unless protected by the domestic priority system below.
4) Domestic priority system
The purpose of the domestic priority system is to protect unfinished inventions and improvement of inventions. That is, if the amendment of the specification falls within the scope of improvement of the invention, domestic priority system permits the application for amendment even if the addtion contains new contents. An earlier applicant must apply for the revised specification, including the content of the earlier application, within one year, except when the earlier application has already been abandoned, withdrawn, judged as invalid, or registered. The contents of the earlier application are applied retroactively to the date of the earlier application, and the contents of the later application are applied retroactively to the date of the later application. And, when the later application gets approved for a patent, the later application receives a new registration number and the earlier application gets withdrawn.
5) Priorism or earlier applicationism
The law grants the exclusive right to the person who files first. If the application is filed on the same day, consultation between inventors is necessary. There is no patent without consultation. However, there are cases where protection for late applicants is also necessary. This is called expanded priorism, and it describes that if a later applicant asserts a different scope of rights in the same technology before disclosure/registration of an earlier application, that right may be recognized. The subject of the judgment is the claims of the earlier application and the later application, and the timing of application, publication, and registration. And, the scope of judgment is the determination of the sameness, that is, how similar the claims of the two applications are. Based on the judgement, one may be given an opportunity for one’s patent rights . In comparison of these practical requirements, the judgment on inventive step has a wide range of judgment as the novelty, originality, and the expanded originalism are the judgment of the sameness of the invention, and the judgment on the inventive step is the judgment on the ease of invention.
2. Foreign application of patents
According to the Law of Patent Independence (Paris Treaty), a patent right is stipulated to be issued in a country in which the right to be guaranteed is granted. Therefore, when you want to apply for a patent in another country abroad, the traditional method of filing a patent application abroad is to file an application directly in the desired country. It needs to be done within 12 months of filing the domestic application. In this case, if the patent is recognized, the filing date is applied retrospectively to the domestic filing date, but the disadvantage is that the initial cost is large when a rapid patent registration is required. So this traditional approach is usually chosen only when one wants to apply for a patent in fewer than three countries.
Today, we looked at intellectual property rights, especially “the patent system and traditional overseas applications”. Next time, we will have time to discuss “PCT overseas application system and patent rights”.
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