Insu Yang
Director, Korean Intellectual Property Office, Republic of Korea
Correspondence to Insu Yang, E-mail: yanginsu@korea.kr
Volume 19, Number 1, Pages 17-47, March 2024.
Journal of Intellectual Property 2024;19(1):17-47. https://doi.org/10.34122/jip.2024.19.1.2
Received on December 04, 2023, Revised on December 27, 2023, Accepted on February 29, 2024, Published on March 30, 2024.
Copyright © 2024 Korea Institute of Intellectual Property.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives (https://creativecommons.org/licenses/by-nc-nd/4.0/) which permits use, distribution and reproduction in any medium, provided that the article is properly cited, the use is non-commercial and no modifications or adaptations are made.
Supreme Court decision 2017Hu1304 has established an inherency doctrine in determining novelty. According to the decision, it is not enough to simply show the possibility or probability that something can be done to show prior art to be the same as the present invention; instead, it is necessary to show that it is an inevitable or a natural result. The purpose of the novelty requirement is important when judging novelty based on inherency. Theory of public domain, according to which patents are not granted for the subject matter already enjoyed by the public, is likely to play a greater role than theory of technical idea identicality, according to which patents are not granted for identical inventions. Therefore, in cases where a product or method already exists in prior art, meaning the public is already enjoying the benefits of using that disclosed product or method, novelty cannot be acknowledged simply by discovering the properties or characteristics of the recognized product or method. However, whether some products or methods are known in advance and thus the public are enjoying the benefits should be determined is very difficult to be determined, but it must be decided accurately through judgment as to whether the property or characteristic is an inevitable or natural result of the prior literature.
novelty, inherency, intrinsic, public domain, natural result
No potential conflict of interest relevant to this article was reported.
The author received manuscript fees for this article from Korea Institute of Intellectual Property.