The patent system gives inventors exclusive rights, but to protect your invention, it’s important to carefully craft the claims in your specification to ensure that your rights are as broad as possible.
If you put your time, money, and effort into an invention and bring it to market, only to find that someone else can easily copy it and sell it, no one will invent it. The patent system exists to prevent this. The patent system is a system in which the state grants an exceptional monopoly, in exchange for the public disclosure of an invention, to promote industrial development through the creation of improvements. In other words, the inventor is legally entitled to monopolize the invention for up to 20 years to promote invention and make it available to the general public. However, while patents provide a long period of exclusivity, they also have complicated procedures and mechanisms for registration requirements and exercising rights after registration. Therefore, not all inventions are patentable simply because you invented them, and even if they are, it may be possible to manufacture and sell imitations within the scope of the law. To prevent this from happening, let’s take a look at the requirements for patent registration, and give examples of what kind of patent you should seek to maximize the protection of your invention.
Before we get into the patent requirements, let’s review how to express an invention. An invention is a technical idea that uses the laws of nature to create a technical idea, which is a sophisticated, intangible, and invisible technical idea. Therefore, when filing a patent application, you must describe your invention in the form of claims in the specification, which will determine the patent eligibility and, later, the scope of the rights. In other words, the content of the claims is your invention. You are not submitting the invention itself, and the importance of the claims cannot be overstated, as the claims in the specification will be judged regardless of the invention. Let’s take a look at how to write claims.
To get a patent, you need to write patent-eligible claims, which fall into three main categories. First, patent-eligible persons. Second, patent-eligible inventions. Third, the formal requirements of a patentable application. Of these, the formal requirements of a patentable application are the job of the patent attorney representing the patent applicant. Since who can be patented is not a major concern, let’s focus on patentable inventions. There are several requirements for patentable inventions, but the most important ones inventors need to know are novelty and inventive step. Novelty means that the invention has not been previously disclosed in Korea or abroad at the time of filing. In other words, only new inventions can be registered, not inventions that have been disclosed in Korea or abroad. However, only the exact same invention cannot be registered, and improvements can be registered. Novelty means that only inventions that are advanced from known inventions can be registered. Like novelty, known invention here refers to known inventions in Korea and abroad. An advanced invention is judged by a person having ordinary knowledge in the field of technology based on the state of the art in Korea. Therefore, an improved invention that adds an advanced technology from a known technology is eligible for registration.
If you write a claim that satisfies the novelty and inventive step, you can register your invention. So, can you now exclusively use your patented invention? To analyze this a bit further, can I use my patented invention? The answer to both questions is “neither”. The answer to both questions is “neither”. This is a common misconception among inventors and one that requires a deep understanding of patents. It would be very frustrating to spend money and time to get a patent registration, only to find out that you cannot monopolize your invention. To avoid this situation, we need to understand the scope of patent rights.
The scope of rights refers to the extent to which you can exercise the rights of your registered patent, which is determined by the claims. The scope of Korean patent rights is peripheral limitations. This means that the rights are granted to the extent that they cover all the components that make up the invention. In other words, if you exclude or slightly modify any of the components of your invention, you can design around it. For example, if I write my claim as “a bicycle comprising wheels, a handlebar, a body frame, and pedals,” then the scope of my invention includes all of the wheels, handlebar, body frame, and pedals, so if someone adds a light to it and sells it, they are infringing my patent. However, if I had written the claim as “a bicycle comprising wheels, handles, a body frame, pedals, and a light,” then it would not be an infringement if someone sold the bicycle without the light.
Another example. If you invented a really good beef head soup, how would it be most advantageous to write the claim: “A broth made from beef bones, with head meat as a garnish, and minced seasonings.” If someone made a similar product using other cuts of meat instead of head meat, would they be infringing? If they used pork or chicken instead of cow, or clear broth instead of minced spices, they would not be infringing on your patented invention. Therefore, it would be most beneficial to write the claim as “a food product comprising animal meat in a broth made from animal bones, garnished with animal meat.” This is the broadest claim possible. This is just an arbitrary example for illustration purposes, but it is not uncommon in practice. In fact, there is a case where someone invented a very patentable stethoscope, but described the shape of the stethoscope head as square in the claim, which did not affect the utility of the invention. Even if a competitor later changed the shape of the stethoscope head to a square, oval, circle, etc., the patent would not be able to claim infringement, rendering the patent useless.
So, let’s answer the first question. The first question is, can I use the patented invention? In this case, under certain circumstances, you can’t. For example, let’s say that A registers his invention A first, and then E applies for A+B, which can be registered if it is inventive. However, if Eun practiced his invention, he would infringe K’s invention because it falls within the scope of K’s prior patented invention due to the peripheral limitations described earlier. In this case, Eun cannot practice his invention even though he has been registered. In other words, whether or not to register and whether or not to exercise the rights are two separate issues, and it is possible to be registered but not to exercise the rights. Does this mean that Eul doesn’t need to register his invention? Not necessarily. In this case, Eun’s invention is more advanced than K’s invention, so K’s invention is less in demand in the market. Therefore, K wants to sell Eun’s invention, but doing so would be an infringement. In this case, B and C can enter into an agreement that allows each other to use their inventions. Therefore, it becomes necessary for B to register the invention.
Which brings us to the second question: can you claim non-infringement when someone else sells a copycat product? The answer is probably not. As we’ve seen, narrowly drafted patent claims can always be circumvented.
In order to efficiently market your invention and prevent others from infringing on it, you need to set the scope of your rights as broadly as possible. This means that when writing claims in your patent specification, you should avoid including components that are not necessary for your invention. Only the essential parts of your invention should be included in your claims, and they should be written to cover only your invention. Claims should be written around the parts of your invention that work and should be thoroughly reviewed to ensure that competitors cannot easily change them.
In conclusion, the patent system is an important system that promotes invention by granting exclusive rights to inventors, which in turn contributes to the development of industry. However, because the process and mechanisms are demanding and complex, inventors must be careful during the patent application process. In order to maximize the protection of their inventions, inventors should carefully draft claims in the patent specification and set the scope of rights so that their inventions can be effectively used in the market.
