Patent & Utility Model Lawyer | Understanding Applications, Infringement, and Invalidation in One Place

Patent & Utility Model | Application Rejection, Invalidation Trial, or Infringement Action?

Patent and utility model matters branch into distinct procedural tracks depending on what problem you are trying to solve. Picking the wrong track wastes time, since each has its own forum, evidence standard, and appeal path.

Patent & Utility Model | What Counts as a Patent or Utility Model, and What Protection Gives You

Before any dispute strategy makes sense, it helps to understand what is actually being protected and through which right. The two systems overlap in purpose but differ in requirements and scope.

Patent & Utility Model | Was Your Patent Actually Infringed?

Most infringement disputes turn on a technical comparison, not a general sense that 'this looks similar.' Understanding how that comparison is done helps you assess your own position realistically before spending on litigation.

Element-by-element comparison against the claims

Korean courts apply the 'all elements rule': every element recited in a patent claim must be found in the accused product or process for literal infringement to exist. If even one claimed element is missing, literal infringement generally fails, which is why claim drafting quality matters so much at the application stage.

The doctrine of equivalents

Even where a literal element is missing, infringement may still be found if the accused product achieves substantially the same function and result through a substitution that would have been obvious to a person skilled in the art at the time. Korean courts apply this doctrine cautiously, and it typically requires expert technical analysis to establish.

Direct versus indirect infringement

Beyond directly making or selling the patented product, supplying a component that is exclusively used to produce the patented invention can itself be treated as infringement (특허법 제127조). This matters for suppliers and component manufacturers who may not realize their upstream sales expose them to liability.

Patent & Utility Model | Defending or Attacking Whether the Right Should Exist at All

In practice, an accused infringer's strongest move is often not to argue non-infringement but to attack the validity of the patent itself. If the right is invalidated, the infringement claim built on it collapses.

Prior art searches decide most invalidation trials

An invalidation trial usually stands or falls on whether the petitioner can locate a prior publication, patent, or public use that discloses the same or an obvious variant of the claimed invention before the filing date. This is a document-intensive process, often involving searches across Korean, Japanese, US, and European patent databases.

Correction of claims during the trial

A patent holder facing an invalidation trial can request correction of the claims to narrow their scope and avoid the cited prior art, provided the correction does not add new matter or broaden the claims (특허법 제136조). This is a common defensive tactic, though it can also narrow what the patent holder can later assert against an infringer.

Effect of a final invalidation decision

Once an invalidation decision becomes final, the patent right is treated as if it never existed from the outset, except in limited situations involving specific later-arising grounds (특허법 제133조 제3항). Any pending infringement lawsuit relying on that patent will generally be dismissed or need to be withdrawn once invalidation is confirmed.

Patent & Utility Model | Calculating Damages and Stopping Ongoing Infringement

Winning on infringement is only half the case; the harder part is often proving how much the infringement actually cost you, or persuading a court to grant an immediate injunction before trial concludes.

Methods for calculating damages

The Patent Act provides several ways to establish damages, including the infringer's profit from the infringing acts, a reasonable royalty rate, and a statutory presumption based on the patent holder's lost sales (특허법 제128조). Courts have discretion to determine a reasonable amount even where exact proof of damages is difficult, which can help patent holders who lack complete sales data.

Preliminary injunctions before final judgment

Where waiting for a full trial would cause irreparable harm, a patent holder can apply for a preliminary injunction to stop the infringing activity immediately, but this generally requires demonstrating a strong likelihood of success on both infringement and validity (민사집행법 제300조). Because a wrongly granted injunction can be costly to the other side, courts scrutinize these applications closely.

Criminal liability for infringement

Patent infringement can also constitute a criminal offense punishable by imprisonment or a fine, and in most cases prosecution requires a complaint from the patent holder (특허법 제225조, 제225조의2). A criminal complaint is sometimes used strategically alongside a civil claim to create pressure for settlement, though the outcome still depends on the same infringement and validity issues.

Patent & Utility Model | From Initial Consultation to Resolution

Patent & Utility Model | How Fees Are Typically Set

※ Costs vary depending on case complexity and specific circumstances; exact fees will be provided during consultation. No specific outcome is guaranteed.

Patent & Utility Model | Self-Check Before You Move Forward

Frequently Asked Questions

Official References

• Korea Law Information Center — https://www.law.go.kr
• Easy-to-Find Everyday Legal Information — https://easylaw.go.kr
• Korea Legal Aid Corporation — https://www.klac.or.kr
• Ministry of Employment and Labor — https://www.moel.go.kr