Reforms to patent law to introduce good-faith principle, revise fraud offense, improve examination procedures
Fraudulent patent applications — including those that fabricate experimental data or copy another person's invention — will now be subject to criminal punishment, not just invalidation.
The Ministry of Intellectual Property said Tuesday it plans to overhaul laws and regulations to address violations of the good-faith principle in patent applications, and will take strict action against large-scale or repeated acts of deception.
The ministry plans to enshrine a good-faith compliance principle in the Patent Act. Under current rules, a patent can be maintained even when false experimental data is discovered — applicants need only delete the problematic section. This makes it difficult to block upfront attempts to obtain patents using specifications that contain fabricated information.
The ministry said it will introduce measures to deny corrections to patents found to have been registered on the basis of false data, and to invalidate such patents in their entirety. When an application is suspected of violating the good-faith principle, examiners will notify the applicant of grounds for rejection and require the applicant to demonstrate that the application is legitimate.
The ministry also plans to revise the "offense of fraudulent acts" provision in the Patent Act. The existing provision punishes those who obtain a patent decision through "false or other improper acts," but the scope of prohibited conduct is vague and the range of punishable parties too narrow.
Under current rules, copying an obscure inventor's work and filing it as one's own may not clearly constitute a "false or other improper act," meaning the patent can be invalidated but the applicant escapes punishment. The provision also limits liability to those who actually receive a patent decision, so applicants who misappropriate technical data but fail to obtain a patent cannot be prosecuted — a structure that makes it difficult to deter misappropriation before it causes harm.
The ministry said it will amend the fraudulent-acts provision to spell out specific categories of punishable conduct and to allow prosecution of repeat offenders even when no patent decision is granted. Penalties will be raised to the level of the Criminal Act's obstruction of official duties offense — up to five years in prison or a fine of up to 50 million won ($36,000) — to enable a more stringent response to deceptive conduct.
The ministry will also move to block a type of workaround in which applicants combine meaningless elements drawn from unrelated technical fields to confuse examiners. One example is a patent application whose core components are mechanical but which bundles in an unrelated chemical-coating technology, adding unfamiliar elements from another field to obscure the application's true nature. The ministry said such cases undermine patent quality.
For patent applications suspected of using this kind of simple cross-field combination, the ministry plans to introduce "advisory collaborative examination," in which examiners from each relevant technical field review the application together to prevent such patents from being registered.
If a workaround patent has already been registered, the ministry said it will work with examiners who have expertise in the relevant technical field to file an ex officio invalidation trial. When an examiner files such a trial, a dedicated litigation officer will handle any subsequent cancellation suit at the Patent Court, reducing the burden on examiners and making it easier for them to use the ex officio invalidation system.
"Attempts to obtain patents through improper means cause serious damage to the credibility of intellectual property administration," said Jeong Yeon-u, vice minister of intellectual property. "We will filter out trick patents and create an environment where the genuine technology of honest inventors and companies receives the protection it deserves."
kwonhl@heraldcorp.com
