8.1 Overview of the patent system
8.1.1 Evolution of the patent system
The Patent Act states its purpose in Article 1 as being “to promote technical development by protecting and encouraging inventions and promoting their use in order to contribute to industrial growth.” It was enacted with the aim of protecting the interests of both inventors and the users of inventions.1 With the ultimate goal of industrial growth, a balance between public and private interests has been the overarching theme in the continuous evolvement of patent law and the patent system. Patent law protects inventions that contribute to the technical development of society by compensating for the time, effort and costs incurred in their production. By contrast, inventions lacking an inventive step or otherwise falling short of the criteria for being a protectable invention are put into the public domain for everyone’s use.
A patent right is a property right and is thus protected under the general provision of the Constitution guaranteeing property rights,2 as is often seen in the constitutions of other countries. In addition, Article 22(2) of the Constitution specifically sets forth that “the rights of authors, inventors, scientists, engineers and artists shall be protected by the law,” focusing on the implied notion that a patent right, as a property right, should be exercised to the degree that corresponds to its actual value and in a manner that promotes justice and fairness.3 In search of the right balance, the patent litigation system has contributed in many ways to realizing the purpose of Article 1 of the Patent Act. For example, it has worked to determine whether a specific invention is worth protecting, defined the scope of patent rights to decide what remains in the public domain and has held those who have infringed others’ patent rights liable.
The first Patent Act of the Republic of Korea was enacted on October 5, 1946, pursuant to Order No. 91 of US martial law. The 1946 Patent Act installed the Patent Bureau within the Ministry of Commerce and Industry and launched the Tribunal and the Appellate Tribunal under the Patent Bureau. The Tribunal took charge of inter partes cases, such as the scope of rights confirmation and invalidation cases, while the Appellate Tribunal took charge of appeals against the inter partes decisions of the Tribunal and of cases filed against rejections of patent applications. The decisions of the Appellate Tribunal were appealable to the Supreme Court only when statutory violations were at issue. While the Patent Act had been amended numerous times since then, and the Patent Bureau was reestablished as the Korean Intellectual Property Office (KIPO) in 1977, the patent trial system – starting with the Tribunal, leading to the Appellate Tribunal and then to the Supreme Court – survived up until the Patent Court opened.
8.1.2 Patent application trends
Figure 8.1 shows the total number of patent applications (direct and Patent Cooperation Treaty (PCT) national phase entry) filed in the Republic of Korea from 2000 to 2021.