For an invention to pass the Patent Office examination and achieve registration, it must meet three conditions: ➀ It must be industrially applicable, ➁ It must be novel, and ➂ It must involve an inventive step (be non-obvious) compared to existing technology.
Industrial applicability simply means it must be capable of mass production. The patent system grants exclusive rights for a period in exchange for technology disclosure, and the reason for demanding disclosure is ultimately for industrial development. Since it’s for industry, it naturally requires that identical products can be repeatedly mass-produced.
Things often called ‘technology’ but reliant on individual skill, for example, methods of embroidery or unquantifiable ‘knacks’ like a chef’s touch, cannot be considered patent-eligible technology.
Novelty means it must not be identical to existing technology. Here, ‘existing technology’ refers to technology worldwide, not just domestic. In theory, a patent must be the first of its kind in human history as of the filing date.
While ‘first in human history’ sounds like it requires groundbreaking technology, being ‘novel’ simply means not being ‘completely’ identical to existing technology. Since inventions often combine multiple components, finding an existing technology with the exact same effect and identical configuration is rare. Practically speaking, unless an invention is copied, novelty is seldom a major issue. Reasons for refusal based on lack of novelty might occur once in a decade.
The main issue is inventive step. The meaning of ‘involving an inventive step’ can be understood as the invention possessing creativity when compared to existing inventions. It means that compared to all existing technology worldwide, the invention must have sufficient value to warrant protection through exclusive rights. Patent rights are a type of intellectual property right, so this is natural. However, it requires a significantly higher level of creativity than copyright.
This requirement for creativity is demanded because such strong rights are granted.
However, there are no clear-cut standards or benchmarks to determine if a technology is sufficiently inventive compared to prior art to be worthy of protection, or if it possesses that level of value. Different people can judge the same invention quite differently. Most patent applications are rejected for lacking an inventive step, and patents can be invalidated even after registration for the same reason.
This requirement for inventive step is intriguing. To obtain patent registration, an invention must be inventive compared to prior inventions. This sounds much like the following:
For a product to appeal to consumers with competitiveness that meets their needs and differentiation from similar products, what kind of competitiveness and differentiation must that product possess?
Technical inventive step and product competitiveness are distinctly different. Many technically brilliant inventions lack marketability and never become actual products. Conversely, some products with little technical significance appeal strongly to consumers and sell extremely well.
However, there is certainly a point where they converge. Especially for a patented product to truly possess market competitiveness, it must have a point of differentiation (inventive step) that distinguishes it from existing products (inventions).
The somewhat broad and distant-seeming requirement of ‘technical inventive step’ contains, in one corner, the core element of a product’s ‘technical competitiveness’.
Patents are a system operated for industrial development, and unsold products have no industrial significance. Many inventions possess patent value but lack commercial value entirely. However, meaningful, market-competitive products often also have value as patents. And this trend is growing stronger.
