How to Reform the Korea Patent System?

Abstract

“Insider governance” of Patent Office is a keyword to explain a policy-making process of Korea patent system. The Korea patent policy has been made by a narrow group of experts within Patent Office which relies upon patent seekers for its income. This article calls for more critical assessment of the role of Patent Office and suggests reforming the patent system from four angles.

First angle of the reform relates to an absolute monopoly of patent rights and suggest (i) introduction of independent invention defense, (ii) deletion of a provision that presumes negligence of a patent infringer, (iii) changing the current ‘hard-look’ examination to a ‘filtering’ examination, (iv) introduction of the ‘best mode’, and (v) revision of the existing rule putting priority on patent-related international treaties over the domestic Patent Act. Among these, the independent invention defense is of merit in that reduction of incentive to invent is moderate while decrease of deadweight loss caused by patent monopoly is significant, and that the savings in information costs which are associated with patent search and patent avoidance costs are great. The‘ hard-look’examination system, while requiring expensive administrative resources, fails to sufficiently assure patent quality. The proposed ‘filtering’ examination would streamline the current ‘hard-look’ patent examination process in a much cost-effective manner and alleviate harmful impacts of “bad” patents.

Second reform proposal concerns patent quality and considers (i) establishment of an independent body for the review of patent examination conducted by Patent Office, (ii) obligation of a patent applicant to provide material information regarding prior arts, and (iii) an instrument to encourage participation of peers in the patent examination process.

Third proposal is to foster wider social use of patented inventions: (i) expanding the scope for governmental use of patented invention, (ii) modernizing compulsory license system, (iii) introducing march-in rights for the use of publicly-funded and privately-owned R&D activities, and (iv) linkage between ‘open license’ and reduction of maintenance fee. Last proposal for the patent system reform is directly connected to the problem of“ regulatory capture”of Patent Office: an executive agency system in which Patent Office has to define patent seekers as its customers to be best served.

This article was published in LAW & TECHNOLOGY Vol. 5, No. 3 (2009) and downloadable (the full text is in Korean)