1. The number of trademark applications is all-time high for the 1st quarter
-The number of Korean trademark applications filed during the 1st quarter recorded an all-time high with an increase of 22.4%, compared to the same period of the previous year.
According to KIPO, the number of trademark applications filed during the 1st quarter this year was 80,576 recording an all-time high, showing an increase of 22.4% compared to the same period of the previous year (65,826).
Reflecting the continuous increase in the number of trademark applications since 2018, the number of the trademark applications filed in 2020 despite the COVID-19 pandemic, increased by 10.9% compared to the previous year.
The number of trademark applications continued to increase worldwide, and the number of the trademark applications filed by the major countries including US and China, except for Japan, increased in 2020 compared to the previous year.
The class where the most trademark applications were filed was Class 35 (internet/mobile shopping mall business, etc.). In this class, the number of the trademark applications was 3,349, showing an increase of 34.9% compared to the same period of the previous year. An increase in the number of online businesspeople based on the digital and contactless economic growth is considered as being reflected in filing the applications under Class 35.
An online businessperson registers a business as a mail order business, the number of which continued to increase over the last 5 years and it increased in 2020 by more than 30% compared to the previous year.
The increase rate (12.1% on average over 5 years) in the number of applications in the service business field over the last 5 years was higher than the increase (7.5% on average over 5 years) in the number of applications in the goods field. This is considered as resulting from the fact that the number of service businesses increased every year.
2. The first patent examination case on that ‘Artificial Intelligence (AI) can be an inventor?’
-An examination starts on a first Korean patent application where AI is described as an inventor.
-KIPO is taking a position that ‘AI cannot be an inventor’ and issues a notice of requesting an amendment (correction).
Can AI be an inventor like a human under the Patent Act?
As the result of a 1st examination on the patent application for an invention that is asserted as being invented by AI, on May 27, 2021 KIPO issued a notice for requesting an amendment that since AI which is not a natural person is described as an inventor, this does not comply with the Korean Patent Act and thus the inventor should be corrected.
If the applicant does not follow the request for amendment, the patent application will become invalid. The applicant may file an administrative appeal or administrative litigation against the invalidation.
[US AI developer AI invention International Patent Application (filed the Korean translation thereof on May 17, 2021)
According to KIPO, as the International Patent Application where AI is indicated as an inventor by an US AI developer (applicant: Stephen Thaler) entered the Korean national phase, the first patent examination case on whether AI can be an inventor has happened for the first time in Korean history. The name of the AI program which is asserted as the first AI inventor by the applicant is ‘DABUS (Device for the Autonomous Bootstrapping of Unified Sentience)’.
According to the relevant applicant’s assertion, he has no knowledge relating to the invention and DABUS developed by him itself created two different inventions, such as a food container, etc., after learning general knowledge.
The core of each invention is that as for the food container, the connection of the container is easy and the heat transfer efficiency is good due to a wide surface area thereof, and as for the lamp, light is emitted to stand out to the eyes by imitating a neural behavior pattern.
[Result of 1st examination by KIPO: Notice for requesting amendment (correction) (May 27, 2021)]
KIPO has conducted the 1st examination of the relevant patent application and notified the applicant of the Notice for requesting an amendment, stating that ‘since AI which is not a natural person is described as an inventor, this does not comply with the Korean Patent Act and thus the inventor should be corrected.’ To determine whether AI directly invents the relevant invention, KIPO has first indicated a formal defect that AI is described as an inventor.
Since the Korean Patent Act and the relevant precedent recognize only a natural person as an inventor, a company or corporation or device, etc. which is not a natural person must not be described as an inventor. That is, since AI which is a kind of program is not a natural person, it cannot be an inventor. This principle is the most basic and common concept which is adopted in all countries including US, GB, Germany, among others.
In the future, when the patent application is invalidated since the applicant does not amend the inventor, the applicant may file an administrative appeal or administrative litigation.
[Discussions are active on the need to reorganize the system in line with technological development and the AI invention]
Majority opinion at home and abroad is that AI is regarded as a simple tool up to now. However, when there happens a situation that due to the future technological development, AI creates an invention like a human, since this may bring a strange situation that although the invention exists, neither a human nor AI can be an inventor or a right holder, the relevant discussions have become active.
Among the different issues about an AI invention, the representative ones are ① whether AI can be considered as an inventor, ② Who is to be the right holder of the AI invention, and ③ how about the duration of the right of the AI invention.
①Whether AI can be recognized as a co-inventor or a sole inventor?
②Who is considered as a right holder, among an AI developer, an AI owner and an AI user?
③Whether the duration of the right of the AI invention is to be shortened than that of a human invention because AI can easily make an invention relative to a human?
In this connection, KIPO plans to form a legal advisory committee to collect opinions from universities, research institutes and industries and to positively participate in an international discussion through the conference of WIPO and IP5.
3. It is now possible to register a partial design in China
-The Chinese Design system has a big change by the operation of the amended Chinese Patent Law (effective in June 1, 2021).
The Chinese Design Protection System is reinforced. From June 1, 2021, a partial design can be protected in China by the 4th amendment to the Chinese Patent Act (official name: Patent Law of the People’s Republic of China) made after 12 years since 2008. The period of a design protection is extended from 10 years to 15 years.
KIPO said that, in accordance with the implement of the new Chinese Patent Law, Korean companies having entered China or planning to enter China need to in advance check the information on the new Chinese Design System and to prepare for that.
Specifically, as the partial design system has been introduced, it is possible to protect a design in China at the level of the major countries such as South Korea and US, among others. Previously, no partial design system is available in China and thus when a Korean company filed a Chinese design application based on the partial design registered in South Korea, the applicant experienced great trouble.
Even though a Chinese design application was filed based on the Korean registered partial design, claiming the treaty priority, since it was possible to register the Chinese design only when the partial design must be changed to the entire design, not only it was burdensome in time and expense but also in reality it was difficult to protect a design right with effectiveness on a characteristic part of a product.
The design protection period has been also extended from 10 years to 15 years. While the China National Intellectual Property Administration (CNIPA) strengthens the protection of a design right holder by extending the protection period, it seems to more positively carry forward the preparation to join the Hague Agreement for filing an international design application.
4. Absolute strong K-OLED display leads the world patent applications
-South Korea is 1st in ranking on the number of patent applications related to the core technology of OLED display drive.
A demand for a high-performance organic light emitting diode (OLED) display with a clearer and even picture quality, longer lifespan, etc. has rapidly increased. As important as an OLED emitting device is just the circuit technology to drive the OLED device in realizing the high-performance OLED display.
Especially, the ‘compensation and correction’ as one of the major technologies of driving OLED is the technology to reduce a characteristic deviation among pixels and prolong lifespan by preventing deterioration which is a phenomenon that the chemical and physical properties of an insulator become bad according to an external or internal influence. Recently, since the number of pixels of the OLED display has rapidly increased, the compensation and correction is notice as a more important core technology.
According to KIPO, as a result of surveying the patent trends (2011~2020) in IP5 (South Korea, US, China, Europe and Japan), South Korea took first place in the number of patent applications related to the compensation and correction technology which is a core technology of an OLED display drive.
As a result of surveying applicants by nationality, South Korea was in 1st place (5,384 application, 43%), followed by China (3,273 applications, 26%), Japan (2,433 applications, 20%) and US (567 applications, 5%).
By companies filing many applications, Samsung was 1st (2,786) and LG was 2nd (2,412), showing that Korean companies have led the world patent applications.
A Chinese company, BOE Technology Group, was 3rd (1,676) and a Japanese R&D company, Semiconductor Energy Lab, was 4th (907).
In the number of patents registered with each Patent Office, the most patents (4,044) were registered by Korean, followed by Japan (3,533), China (2,061) and US (628).
Upon reviewing the trends by years, Japan was a front-runner in the first half of 2010s (2011~2015) but South Korea overtook Japan in 2016 and has kept the 1st place.
In 2017, China overtaking Japan and a ranking in the number of registered patents was reorganized as South Korea, China and Japan.
5. The amended Korean Trademark Act, Design Protection Act and Unfair Competition Prevention Act are effective (June 23, 2021) for the realization of compensation for damages
-An improved calculation method of damages is applied to all the intellectual property legislative including trademark, design, unfair competition act and trade secret, likewise the Korean Patent Act (effective December 10, 2020).
-It is possible to protect a strong IP right by combining the treble damages as previously introduced.
◈ Calculation method of damages by infringement on a trademark, design, unfair competition act or trade secret
- (previously) compensation is for only damages within the limit of production capacity of a right holder
⇒ (revised) compensation of damages within the limit of production capacity of a right holder + additional compensation of sales quantity exceeding production capacity as ‘reasonable license fees’
From June 23, 2021, the damage compensation has been realized by compensating a royalty as to an infringement act exceeding the production capacity of a rightful holder of an intellectual property right (trademark, design, etc.).
According to KIPO, the partial revisions of the Trademark Act, Design Act, and Unfair Competition Prevention and Trade Secret Protection Act went into effect on June 23, 2021 to compensate damages as to an infringement act exceeding the production capacity of a right holder.
Previously, even though leading companies developed an innovative idea or technology, there happened many cases where late movers would seize or copy the idea or technology without permission, rather than making a normal contract of usage.
Such situation happened basically because a right holder could not get damage compensation as to the extent exceeding the production capacity of the right holder. Thus, a small company lacking production line, etc. could do nothing else but to watch that even though another company seized or copied the small company’s own technology and earned huge profits.
As the revised relevant Acts have operated, in the future a right holder can additionally get a compensation of the profits (reasonable license fees) that should have been rightly received through a license agreement as to the infringement or seize act exceeding the production capacity of the right holder, in addition to the extent to which compensation could be previously received.
The ‘improved calculation method of damage compensation’ was first introduced in the Korean Patent Act in December 2020. Therefore, as the Acts revised at this time have operated, using the same calculation standards for damage compensation can be applied to the most intellectual property rights, except for a copyright.
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