Preface

In today's globalized economic and technological competition, the importance of intellectual property is becoming increasingly prominent. For a country like South Korea that heavily relies on technological innovation to drive economic development, a sound and efficient patent system is the cornerstone of ensuring innovative achievements and stimulating innovation vitality. The patent invalidation system, as a key link in the patent system, is like a calibrator for precision instruments, ensuring the accuracy and fairness of patent authorization. Today, we will delve into the mysteries of South Korea's patent invalidation system together.

（1） Initiate the main body

Stakeholders:At any time after the grant of a Korean patent, interested parties may request the invalidation of the patent to the Korean Intellectual Property Trial and Appeal Board (IPTAB). The range of stakeholders here is relatively broad, typically including defendants in infringement lawsuits. When the defendant is accused of infringing on someone else's patent rights, if they believe that the patent in question should not be granted, they can initiate a patent invalidation procedure in an attempt to get rid of the infringement allegations by declaring the patent invalid. For example, if Company A is sued by Company B for infringing on one of its invention patents, and Company A evaluates that the patent does not meet the requirements of novelty or creativity, then Company A can file a patent invalidation request with IPTAB as an interested party.

Patent examiner:If the patent examiner discovers problems with the authorized patent in subsequent work and considers it to be non compliant with legal requirements, they also have the right to request invalidation from IPTAB. By virtue of their professional knowledge and familiarity with the patent examination process, examiners are able to keenly detect possible defects in authorized patents, such as existing technology that has not been discovered during the examination process affecting the novelty of the patent, or claims that are not written in accordance with standards, thereby initiating invalidation procedures and maintaining the quality of patent authorization.

（2） Start time

Unlike some countries that set strict time limits for patent invalidation requests, South Korea is relatively lenient in this regard. Except for invalidation requests for design patents that must be filed within 5 years from the date of authorization announcement, invalidation procedures can be initiated for invention and utility model patents at any time after patent authorization. This means that even if a patent has been granted for many years, as long as stakeholders or examiners discover problems, they can still challenge it through invalidation procedures, fully ensuring the timeliness and comprehensiveness of patent validity examination. This broad time setting aims to ensure that any patent that does not meet the patent authorization standards has the possibility of being corrected, regardless of the length of its authorization time, to avoid allowing some flawed patents to continue to be valid due to time constraints, which may harm public interests or hinder market competition.

2、 Reasons for Patent Invalidity

（1） Lack of novelty and creativity

Novelty and creativity are the core requirements for patent authorization. If a patented technology has been publicly used, sold, published, or made known to the public through other means both domestically and internationally before the application date, then the patent loses its novelty. For example, a new electronic product developed by a certain enterprise may be invalidated due to lack of novelty if its technical features have been displayed and detailed to the public at an international electronic product exhibition before applying for a patent. Creativity requires that the patented technology has non obviousness relative to the existing technology, that is, ordinary technicians in this field cannot easily come up with the patented technology solution based on the existing technology. If a patented technology is only a simple combination or routine improvement of existing technology, without prominent substantive features and significant progress, it does not meet the requirements of creativity and may be deemed invalid.

（2） The application documents have not been fully disclosed

The essence of the patent system is a mechanism of "disclosure for protection". Therefore, patent applicants have the obligation to fully disclose their inventions and creations in the application documents, so that those skilled in the art can implement the inventions and creations according to the description in the application documents. If the description of key technical steps, parameters, etc. in the application documents is unclear, or important technical information is intentionally concealed, resulting in the inability of technical personnel in this field to reproduce the invention without excessive experimentation, then the patent may be declared invalid due to insufficient disclosure of the application documents. For example, if the preparation process description of a drug in the patent application document is too brief and lacks key parameters such as reaction temperature and time control, other pharmaceutical companies may not be able to produce the same drug according to the document description, and the patent may face the risk of invalidation.

（3） Modifying files beyond the scope of the original application

During the patent application process, the applicant may make modifications to the application documents. However, according to the Korean Patent Law, the modified content shall not exceed the scope of the original application documents submitted on the application date. This is to ensure the certainty and stability of the scope of patent protection, and to prevent applicants from expanding the scope of patent protection through later modifications, which may harm the public interest. For example, if the applicant describes the technical features of a certain product as A, B, and C in the original application documents, and adds technical feature D in the subsequent modification process and incorporates it into the claims, such modifications beyond the scope of the original application may result in the patent being invalid.

（4） Duplicate authorization

The same invention or creation can only be granted one patent right, which is a principle commonly followed by patent systems in various countries. If an invention or creation has already been granted a patent in South Korea, and another patent application is filed and granted for the same invention or creation, the subsequent granted patent will be invalidated due to duplicate authorization. For example, if Company A first applies for and obtains an invention patent for a certain technical solution, and then Company B applies for a patent for almost the same technical solution and obtains authorization, Company A may request to declare Company B's patent invalid based on the reason of duplicate authorization.

（5） Not in compliance with the authorized object

The Korean Patent Law clearly stipulates the scope of patentable subject matter, and if the subject matter of the patent application does not belong to the patentable subject matter, the patent is invalid. For example, scientific discoveries, rules and methods of intellectual activity, diagnosis and treatment methods of diseases, etc. are usually not granted patent rights. If someone applies for an invention patent for a new mathematical algorithm, which belongs to the rules and methods of intellectual activity and does not meet the requirements of the authorized object, the patent will be deemed invalid.

3、 The specific process steps of patent invalidation procedure

The invalidation procedure for Korean patents follows a closed-loop logic of "request examination review ruling relief", with the following specific steps to facilitate clear understanding of the operational path by enterprises or stakeholders:

（1） Step 1: Submit invalid requests and materials

The requester (interested party or patent examiner) shall submit a written request for invalidation to the Korean Intellectual Property Trial and Appeal Board (IPTAB), accompanied by a complete set of supporting materials. The request letter should clearly state:

① Basic information of the involved patent (patent number, authorization date, name of patent owner);

② Specific reasons for invalidity (corresponding to the invalidity situations stipulated in the Korean Patent Law, such as lack of novelty, insufficient disclosure, etc.);

③ List of evidence supporting invalid reasons and original/photocopy of evidence (such as existing technical literature, public sales records, experimental data, etc.);

④ The identity information and contact information of the requester (if it is a company, proof of identity documents such as business license must be provided).

At the same time, the invalidation request fee must be paid according to IPTAB regulations (the fee standard may vary slightly depending on the type of patent, and the invalidation request fee for invention patents is usually higher than that for utility models and designs). Failure to pay on time will result in the request being considered not filed.

（2） Step 2: IPTAB Form Review and Acceptance

After receiving the requested materials, IPTAB will conduct a formal review within 15-30 working days, with a focus on verifying:

① Whether the requested materials are complete and the format meets the requirements;

② Whether the request fee has been fully paid;

③ Whether the request for invalidation of a design patent is filed within 5 years from the date of authorization announcement (invention/utility model has no time limit).

If the examination is approved, IPTAB will send a "Notice of Acceptance" to the requester and the patentee, and deliver a copy of the invalidation request and evidence materials to the patentee, officially initiating the invalidation trial procedure; If the materials are incomplete or do not meet the requirements, IPTAB will issue a "Notice of Correction", and the requester must make corrections within the prescribed period (usually one month). Failure to make corrections within the deadline will result in the rejection of the request.

（3） Step 3: Patent holder's defense and evidence exchange

After receiving the "Notice of Acceptance" and related materials, the patentee shall submit a "Defense Statement" within 30 natural days. The defense content shall refute the invalidity reasons one by one and may submit evidence supporting the validity of the patent (such as modification explanations of the patent application documents, technical verification reports, etc.).

After the defense period ends, IPTAB will organize an exchange of evidence between both parties: the patentee's defense statement and copies of the evidence will be delivered to the requester, who may submit supplementary evidence or rebuttal opinions within 15 working days of receipt; If both parties submit new evidence, IPTAB may extend the evidence exchange cycle 1-2 times depending on the situation to ensure that both parties fully obtain each other's evidence and avoid "surprise evidence".

（4） Step 4: Determine the hearing method (written hearing or public hearing)

IPTAB determines the trial method based on the complexity of the case:

Written review:Applicable to cases with clear facts, sufficient evidence, and minor disputes between both parties (such as cases with duplicate authorizations and obvious lack of novelty). IPTAB only conducts reviews based on written materials submitted by both parties and does not organize oral arguments. The review period is relatively short (usually 3-6 months).

Hearing review:Suitable for technically complex and highly controversial cases (such as those involving creative judgment or differences in understanding technical solutions). IPTAB will notify both parties of the hearing time, location, and attendance requirements one month in advance (patent lawyers and technical experts can be appointed to attend). During the hearing, both parties can present their views and cross examine evidence in person, and accept inquiries from IPTAB review committee members (who are mostly legal and technical composite talents and will conduct follow-up on key technical issues). The hearing usually lasts for 1-3 working days, and both parties need to submit a "Summary of Hearing Opinions" within 7 working days after the hearing to supplement any viewpoints that were not fully explained during the hearing.

（5） Step 5: IPTAB substantive review and adjudication

Whether it is a written review or a hearing review, IPTAB will enter the substantive review stage, with a focus on analyzing:

① Does the reason for invalidity comply with the provisions of the Korean Patent Law;

② The authenticity, relevance, and evidential power of the evidence (such as whether the publication time of existing technical literature is earlier than the patent application date, and whether the experimental data is reproducible);

③ Whether the patented technology meets the substantive requirements for authorization (novelty, creativity, sufficient disclosure, etc.).

The substantive review period is usually 6-12 months (complex cases can be extended to 18 months). After the review is completed, IPTAB will make an "Invalid Trial Decision" and deliver it to both parties within 10 working days. The decision letter should clearly state:

① The facts ascertained during the trial;

② Opinions on the determination of invalid reasons (support or rejection);

③ The final ruling result (the patent is completely invalid, partially invalid, or maintained valid);

④ The remedies and time limits for dissatisfied with the ruling.

（6） Step 6: Effectiveness of the ruling and remedies (patent court litigation)

The ruling takes effect:If neither party files a lawsuit within 30 natural days from the date of delivery of the "Invalid Trial Decision", the ruling will automatically take effect. If the patent is declared invalid, IPTAB will announce the invalidation result on its official website, and the patent shall be deemed non-existent from the date of authorization; If it remains valid, the patentee may continue to exercise the patent right.

Judicial relief:If either party is dissatisfied with the ruling, they may file an administrative lawsuit with the Korean Patent Court (defendant IPTAB) within the above-mentioned period, requesting the revocation or modification of the original ruling. During the patent court hearing, the facts and legal application of the case will be re examined, and both parties may be required to provide additional evidence or organize a trial. The trial period is usually 6-9 months; Those who are dissatisfied with the first instance judgment of the patent court may also appeal to the Supreme Court of Korea within 15 natural days from the date of service of the judgment. The judgment of the Supreme Court is the final judgment and cannot be appealed again.

4、 Trial of Patent Invalidation Procedure

（1） Trial institution

The invalidation of Korean patents is handled by the Korean Intellectual Property Trial and Appeal Board (IPTAB). IPTAB is a quasi judicial agency under the Korean Intellectual Property Office, with high professionalism and independence. Its members are composed of professionals with expertise in various fields such as law and technology, who can comprehensively consider the legal and technical issues in patent invalidation cases, ensuring the fairness and authority of the trial results. During the trial process, IPTAB strictly followed legal procedures and conducted a comprehensive and meticulous review of invalid requests.

（2） Trial method

Invalid programs belong to multi-party programs, and IPTAB usually holds hearings or oral hearings. At the hearing, both the invalid requester and the patentee have ample opportunity to present their views, submit evidence, and cross examine each other's views and evidence. This face-to-face trial method helps IPTAB to comprehensively understand the facts of the case and accurately determine whether the patent is valid. For some complex patent invalidation cases, which may involve multiple technical points and a large amount of evidence, IPTAB may even hold multiple hearings to ensure in-depth examination of every detail of the case. For example, in patent invalidation cases involving high-tech fields, due to the complexity of the technology, there may be significant disputes between the two parties regarding their understanding of the technical features and the comparison of existing technologies. Multiple hearings can allow both parties to fully articulate their views, and IPTAB can also make better judgments.

（3） Rules of Evidence

Evidence plays a crucial role in patent invalidation procedures. The invalid requester needs to provide sufficient evidence to support their claim of invalidity. There are no specific restrictions on the type of evidence, and written documents, physical objects, etc. can all be used as evidence. At the same time, in order to prevent the loss or difficulty in obtaining evidence in the future, the parties may also apply for evidence preservation. For example, if the invalid requester discovers that key physical evidence that can prove the lack of novelty of the patent in question may be transferred or damaged, they can apply to IPTAB for evidence preservation, and IPTAB will take corresponding measures to fix and preserve the evidence. In terms of evidence submission, the parties involved must strictly comply with the IPTAB's time limit for evidence submission, and evidence submitted after the deadline may not be accepted. In addition, in the evidence cross examination stage, both parties can question and debate the authenticity, relevance, and legality of the evidence submitted by the other party. IPTAB will judge the probative value of the evidence based on the cross examination situation of both parties.

5、 The Results and Remedies of Patent Invalidation Procedure

（1） Result

Patent invalidity:If IPTAB determines after review that there are grounds for invalidity of the patent, it will make a decision to invalidate the patent. Once a patent is declared invalid, it shall be deemed non-existent from the very beginning, and from the date of patent authorization, the patent shall have no legal effect. For example, after a patent is declared invalid, the infringement lawsuit previously filed based on the patent will change due to the absence of the patent basis, and the accused infringer will no longer be liable for infringement.

Patents remain valid:If IPTAB considers the invalidity reasons raised by the petitioner to be unfounded, it will make a decision to maintain the validity of the patent. At this point, the patentee may continue to exercise their patent rights, including prohibiting others from implementing their patented technology without permission, and requiring the infringer to bear infringement liability.

（2） Relief channels

Both the invalidation requester and the patentee may file a lawsuit with the Korean Patent Court if they are dissatisfied with the invalidation decision made by IPTAB. As a judicial institution specialized in hearing patent related cases, the Patent Court will conduct a comprehensive review of IPTAB's decisions, including factual findings and legal application. During the patent court proceedings, both parties may restate their views and submit new evidence. If the parties are still dissatisfied with the first instance judgment of the patent court, they can also appeal to the Supreme Court of Korea. Through this multi-level relief approach, the fairness and acceptability of the trial results of patent invalidation cases are ensured, fully safeguarding the legitimate rights and interests of the parties involved.

6、 The Latest Reform Trends of Patent Invalidation System

In recent years, with the increasing demand of South Korean companies for high-value patents in global technological competition, the Korean Intellectual Property Trial and Appeal Board has initiated reforms to the invalidation trial system. This reform aims to promote the creation and utilization of "high-value patents" by enhancing the reliability and stability of patent rights.

The core contents of the reform include:

Introduce the system of invalidation adjudication decision:Ensure sufficient defense opportunities between the patentee and the requester in the invalidation proceedings. If it is determined that there are legitimate grounds for appeal, the patentee may be notified before the formal invalidation declaration is made, so that the patentee can maintain its valid rights through a request for correction. The introduction of this system has given patent holders more opportunities to proactively respond, avoiding the improper invalidation of patent rights due to procedural issues, and also promoting the balance of rights and obligations between both parties in the invalidation process.

Improve the court hearing system for invalid trial procedures:Require the requester of invalidation to clearly assert and provide more specific and clear evidence, strictly adhere to the time limit for evidence submission, and ensure that the parties can fully present specific requests or proofs by organizing the arguments in advance. These measures help to improve the efficiency and fairness of invalid trial procedures, reduce trial delays and misjudgments caused by unclear evidence and non-standard procedures, and make invalid trial results more accurate and reliable.

Encourage the inclusion of explanatory opinions on patent claims in requests for invalidation trials:If there are objections or unclear explanations, the parties will be given the opportunity to provide additional statements or evidence. Accurate interpretation of patent claims is crucial for determining patent validity. This reform measure helps to define the scope of patent protection more clearly in invalidation procedures, avoid disputes arising from inconsistent understanding of claims, and improve the professionalism and scientificity of invalidation trials.

7、 Inspiration for Enterprises

1. Ensure quality when applying for patents in Korea:Before applying for a patent in South Korea, enterprises should conduct sufficient patent search and analysis, evaluate the novelty and creativity of inventions and creations, ensure that the writing of application documents complies with the requirements of South Korean patent law, disclose technical solutions in detail and accurately, and avoid the risk of invalidation in the future due to defects in the application documents. At the same time, in the process of patent application, if it is necessary to modify the application documents, it must be noted that the scope of modification must not exceed the scope recorded in the original application documents, and relevant procedural regulations must be strictly followed.

2. Actively respond to invalid requests:When a company's patent is requested to be invalidated by others, it should be highly valued and a professional team should be actively organized, including patent lawyers, technical experts, etc., to conduct in-depth analysis of the reasons and evidence for the invalidation request and develop reasonable response strategies. Make full use of procedures such as hearings to clearly explain the validity and value of patents, submit evidence that can prove the validity of patents, and safeguard one's own patent rights. If you are dissatisfied with IPTAB's decision, you should promptly file a lawsuit with the patent court through legal channels to seek further relief.

3. Using invalid programs to protect one's own rights:In the market competition, if a company discovers that its competitors' patents may have problems that affect its own market development, it can consider using the patent invalidation procedure reasonably and make invalidation requests against the competitors' patents.By using ineffective procedures, we can crack down on competitors' unreasonable patent barriers and create a more favorable market environment for our own development. But before starting an invalid program, it is also necessary to conduct sufficient investigation and analysis to ensure that there are sufficient reasons and evidence to support the invalid request, and to avoid blindly initiating an invalid program and wasting resources.