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The first-to- file rule and the first-to-invent rule
The first-to-file rule and the first-to-invent rule are two different principles for determining which applicant is granted the rights when two or more patent applications are filed for the same invention. The first-to-file rule applies in Korea.
1) First-to-file rule
Regardless of who invented the invention, the rights of an invention are given to the first to file the application at the patent office. If two or more applications for the same invention are filed on the same date, the applicants must consult with one another and try to come to an agreement on who may obtain a patent for the invention. If no agreement is reached or no consultation is possible, none of the applicants can obtain a patent for the invention.
The first-to-file rule is practical because it grants rights for the cost of disclosing the technology and it encourages swift disclosure of inventions.
This rule is in accordance with the purpose of the patent system because it aims to promote industrial advancement through the swift disclosure of inventions.
2) First-to-invent rule
Under the first-to-invent rule, the rights of an invention are given to the actual inventor, regardless of the order in which applications are filed.
This rule has the strength of protecting inventors. Private inventors who don't own an enterprise prefer this rule.
To benefit from this rule, the inventor must provide a journal of the inventive activities that led to the invention and secure witnesses of the invention. The patent office must confirm the time of the invention.
3) Inventions and devices
- A patent right is granted for inventions, while utility model rights are granted for devices
- Under the Patent Act, an invention has a higher degree of technology than a device.
Definition of invention: a highly advanced creation of a technical idea using the rules of nature
Definition of device: a creation of a technical idea using the rules of nature
However, the degree of advancement is subjective, and applicants can make that assessment themselves.
In other words, a creation filed as a utility model is deemed to be a device, while a creation filed as a patent is deemed to be an invention.
Read more about Korean Patent here :
Korean Patent System
What is a Korean Patent?
Information on Korean Patent Applications
Korean Patent Examination System
PCT National Phase Entry into Korea
Application Procedure for Patents in Korea
Filing Requirements
Refusal and Appeal
Application Procedure for Utility Models in Korea
Filing Requirements
Registration and Technical Evaluation
Application Procedure for Layout Designs in Korea
Filing Requirements
Effect of Layout Designs Rights
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