IP & Art

When reading articles in the field of intellectual property, the phrase “nonobviousness” of patents often comes to mind.

The term ‘nonobviousness’ refers to the patent requirement. It is a generally established legal theory that a patent must have industrial applicability, novelty and inventive step to be recognized as a patent. Innovativeness is absolutely critical in patent recognition. It can also be confirmed from the fact that the rate of invalidation trials based on the lack of the nonobviousness in patent invalidation trials is almost 70%.

In legal theory, 'nonobviousness' means that a person skilled in the field of the industry cannot easily derive the subject invention from the prior art at the time of filing. In the United States, this is sometimes referred to as “non-obviousness”. Let's take a look at the early precedents of the United States.

An inventor applied for a patent by making an existing wooden or metal door handle into a clay handle. A U.S. federal court ruled that the patent could not be patented after deliberation. The reason for the rejection was the simple material replacement. If it is judged as such a simple design change, change of use, or general application of publicly known technology, inventive step is rejected.

The United States applies the 'Technology Similarity Criteria' and 'TSM (Teaching, Suggestion & Motivation)' to the screening of progress. TSM means to check whether any teaching, suggestion (suggestion), or motivation specified in the prior art literature exists in the newly applied product. However, excessive application should be avoided.

The Korean Supreme Court also accepts some of the American jurisprudence and judges progressiveness in an eclectic way. Just like in the US, TSM is followed, but all circumstances are synthesized. However, due to the ambiguous and complicated criteria for judging progress, Korea has a higher rate of invalidation trial than any other country in the invalidation trial procedure. It is pointed out that it is necessary to focus on objectification and systematization of patent examination quality improvement and inventive step. Considering the fact that progressiveness occupies the most weight in invalidation trials, effective institutional improvement and a review of universal global standards for judging progress are also required.