Statutory invention
Article 2 of the Korean Patent Act defines an invention as a highly advanced creation of a technical idea using the laws of nature. Laws of nature themselves, perpetual-motion devices, mere presentation of information and pure business methods are not inventions.
Positive requirements (Article 29)
- Industrial applicability: courts treat methods of surgery, therapy or diagnosis of humans as not industrially applicable.
- Novelty: an invention publicly known, worked or disclosed in a publication or over telecommunication lines before filing lacks novelty; a 12-month grace period applies to the applicant's own disclosures (Article 30).
- Inventive step: rejected if a person skilled in the art could easily have made it from prior art, assessed by identifying the closest prior art and the differences while avoiding hindsight.
First-to-file and enlarged earlier application
Only the first applicant obtains the patent for the same invention (Article 36), and an invention identical to one described in an earlier-filed, later-published application is barred (Article 29(3)).
Exclusions and international context
Inventions contrary to public order, morality or public health are excluded (Article 32). TRIPS Article 27 likewise requires patents for inventions that are new, involve an inventive step and are capable of industrial application.
References
- 특허법 [법률], 제2조·제29조·제30조·제32조·제36조. 국가법령정보센터.
- 특허청 (2023). 특허·실용신안 심사기준. 특허청.
- 정상조·박성수 공편 (2010). 특허법 주해 I. 박영사.
- World Trade Organization. (1994). Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 27.