X21. Patentable inventions

1. Patentable inventions

 

*Can medical method inventions be patented? Medical method inventions are not patented because of their health and contribution to humanity. In the case of Korea, it is treated as no industrial applicability. The United States recognizes medical method inventions as patents, but does not allow execution.

 

1) Industrial Applicability

-         No patents are granted for inventions of medical methods, such as surgery, treatment, and diagnostic methods targeting humans, or methods that assume that body odors are returned to the person who took them for treatment.

-         This rule does not apply if the human body is or is not an indirect component.

2) Novelty

-         Inventions known or publicly implemented in Korea or abroad prior to the filing of a patent application, published in publications published in Korea or abroad prior to the filing of a patent application, or made available to the public through telecommunications lines, lose novelty. (*Things known to employees are not subject to loss of novelty due to the confidentiality clause)

3) Progression

Things that cannot be easily invented from known technology by a person with ordinary skill in the field

4) First-to-file principle and expanded first-to-file principle

-         First-to-file principle: granting rights to the first applicant for a patent on the same invention

-         Expanded first-to-file principle: The invention described in the specification or drawings first attached to the application for another patent application published or registered after the patent application was filed and the patent application was filed before the date of filing the patent application.

 

2. Inventions that cannot be patented

*The manufacturing method of counterfeit banknotes is an invention that goes against public order and morals and is not recognized as a patent.

*In the past, inventions of materials, inventions of food and preference, and inventions of materials that can be manufactured by the atomic nuclear transformation method were regarded as non-patent objects, but in modern times they are regarded as patentable objects.

1) Unpatented invention

-         Notwithstanding the provisions of Article 29 1 (Novelty) and 2 (Innovativeness) of the Patent Act, an invention that is likely to disturb public order and good customs or to harm the hygiene of the royal court will not be recognized as a patent.

-         Whether or not an invention is unpatented is judged based on the determination of whether to grant a patent

-         Unpatented inventions are not subject to application publication.

 

2) Inventions necessary for national defense

-         When necessary for national defense, the government issues a confidentiality order or prohibits foreign applications.

-         As necessary for national defense, the right to obtain a patent or a patent right can be granted in case of war, incident, or equivalent emergency.               

-         The government may establish a compulsory license when it is necessary to practice the invention for non-commercial purposes for the public interest in the event of a wartime, incident, or equivalent emergency of the patented invention.

 

3. System Related to Examination

   Can a third party's unauthorized use of an invention be sanctioned after publication of an application? And from this point on, the right to claim compensation arises. However, the exercise of the right to claim compensation is possible from the date of patent registration.

1) Request for review and express review

-         Request for examination: A system that separates the application from examination and examines only the patent application for which examination request has been made within 3 years from the filing date in the order of examination request

-         Express examination: In certain cases among patent applications for which examination has been requested, express examination is conducted regardless of the original order of examination request.

2) Application publication system

-         A system in which a patent application is published in the Patent Gazette and publicly disclosed in the Patent Gazette when 1 year and 6 months have elapsed from the filing date, or earlier if the applicant wishes, regardless of whether or not there is a request for examination of the contents of the patent application

-         Effect of publication of application: Claim for compensation, application for priority examination (Patent Act Article 61 No. 1), application for perusal of documents related to patent application, distribution of deposited microbial samples, and utilization as known technology

3) Claim for compensation

-         Having the patent applicant receive a warning after the publication of the application is made or pay compensation equivalent to the normal royalties to a person who has implemented the patented invention as a business

-         Compensation amount: Equivalent to normal royalties

-         Time to exercise the right to claim compensation: within 3 years from the date of establishment registration or within 10 years from the date of implementation of the patented invention

 

4. System for Applicants

If an inventor announces an invention before filing for a patent, is the application protected? However, if it is less than 12 months from the date of publication, the purport is stated at the same time as the patent application, and proof documents are submitted within 30 days from the filing date, the patent application is not a violation of novelty or inventive step as a known invention.

 

1) Application for claim of exception to notification

-         Even if the invention of a person who has the right to obtain a patent has been known prior to filing a patent application, if a patent application is filed within 12 months from the date of application for a specific reason, it shall be deemed not to have been made public

;          No loss of novelty and inventive step through which the claim to apply the notification exception is legitimate

 

2) Divisional application and modified application

-         Divisional application: When two or more inventions are included in one patent application, a part of the original application is divided into separate patents within the scope of matters described in the specification or drawings first attached to the application

-         Modified application: Registration of a utility model within the scope of the matters described in the specification or drawings initially attached to the application for utility model registration within 30 days from the date the person who filed the original application is served with a certified copy of the first decision to reject the application for utility model registration Changing an application to a patent application

-         Effect of Divisional Application and Alternative Application: Retroactive to the filing date

 

3) Claim priority

-         Treaty Priority: When a national of a State Party that recognizes the priority of a patent application to a Korean national under the treaty applies for a patent in that State or another State party and then applies for a patent in the Republic of Korea for the same invention, Articles 29 and 36 In applying the provisions of Article, a system in which the date of filing an application in that Party is regarded as the date of filing a patent application in the Republic of Korea

-         Domestic priority: If a person who wants to obtain a patent files an application for priority claim within one year based on an earlier application that is still pending, the earlier application included in the priority application is a system in which it is determined that the application was filed at the time of the earlier application retroactively

-         Effect of priority claim: retrospective at the time of judgment (principle)