Why Korean Startups Should Not Apply for a Patent in Korea

Korean startups that have a product will usually get the advance to patent their product. I have been covering the Korean startup scene for over 7 years and I have met many inventors and startup entrepreneurs in Korea who have gone through applying for a patent in Korea. What I learned is that getting a patent in Korea is a terrible idea and many startups in Korea have gone under because they filed for a patent. Patents in Korea are only great for big corporations like Samsung, LG, and etc. There are many reasons for this and I will go into depth as to why patents can completely ruin your company if you are a startup or a single inventor. Getting a patent in Korea should be the least of your worries. In this article, I will break down the reasons why you should NOT apply for a patent in Korea

Application Process for Getting a Patent in Korea

The first step in getting a patent in Korea is to write a patent application. This can be done yourself, however, the quality of the application is the most important part of getting a patent in Korea.  KIPO (Korean Intellectual Property Office) is very strict when it comes to patent applications. The procedure for registering a utility model is the same as that of a patent except for some notification periods. As you can see from the picture below, each box will need to have a detailed description. No startup entrepreneur in Korea has the time or the skills to do the patent application themselves which is why patent attorneys in Korea are in such high demand.

KIBO Patent Examination Guidelines

KIBO has 50 examination standards based on the practices of 5 major IP offices of Korea, the US, Europe, Japan, and China. Their examination standards are similar to international standards. Utility model requirements are less strict than for patents. Applications for a utility model undergo formal and substantive examinations. The validity term of a utility model in Korea is 10 years, compared to 20 years for a patent.

KIBO
KIBO application procedure for Patents and Utility models

Even if the patent is granted, it will be contested at some point in time. Especially if your product is a success. Think about that for a second. The better your product does, the higher the chance your patent will be contested. This is why the application has to be bulletproof. In order to create the best possible patent application, you need to hire a very good patent attorney in Korea. Hiring a patent attorney in Korea is not easy. Big corporations in Korea target the top patent lawyers in Korea. For example, Samsung targets the best of the best patent attorneys to work for their corporation. Therefore, an elite patent attorney in Korea is already taken and can’t be hired by a startup in Korea or inventor.

The second option is to hire a patent lawyer from a law firm. Those that have great track records are usually booked out for months. In addition, their rates are costly. The average cost is around $10,000. Most Korean startups can’t afford $10,000 for a patent application. In addition, the official language of patent registration in Korea is Korean. The application may be filed in English: however, translation into Korean will need to be submitted within 14 months from the earliest priority date.

The Road Most Korean Startups Take When Hiring a Patent Attorney

Close to 90% of Korean startups go with the third option when applying for a patent in Korea. This means hiring an average self-employed patent lawyer. Therefore Korean startups need to do a lot of research to make sure this lawyer is qualified to structure a patent application. It will be up to this average at best patent attorney to handle the KIBO application. The cost will still not be cheap. I have heard of Korean startups only paying $1,000 to others paying $6,000. Many patent attorney’s in Korea overcharge which is why it is important to find not just a competent attorney but an honest one. Good luck with that.

After the application is filed, Korean startups will have to wait between 3-4 years before a patent is granted.  This is terrible for a startup because a patent will increase your company’s chance to get investments. For many, this is one of the main reasons why they apply for a patent in the first place. Korean investors love patents and once they hear you have one, investments become much easier. This is why so many startups in Korea have their patents “pending”(application process). Most Korean startups go into production anyway during this time.

At some point, KIBO will have some feedback/complaints regarding the patent application. There is rarely a case where a patent application is passed on the first submission. Therefore, the Korean startup will now have to hire the attorney again to fix the issues brought up by KIBO and finalize the application. This will be an extra cost for the Korean startup. The typical freelance patent attorney will charge $300-$500 per hour for their services. After all this, the patent could get rejected anyway. However, if a patent is granted, the problems don’t stop there.

KIPRIS

KIPRISKIPRIS (Korea Intellectual Property Rights Information Service) has a great database of patents. In addition, they offer a database regarding IP translation companies. They are an internet-based patent document search service made available to the public free of charge. It is designed to promote the use of patent information for R&D activities, patent disputes, corporate M&A, and etc. Therefore make sure to check this out before applying for a patent in Korea.

Fighting Copycats

If your product is a success, there will be copycats. If those copycats are from China, there is nothing you can do. Since China will not enforce the patent, people will be able to manufacture your product at a much lower cost. This happens all the time and is one of the main reasons for the China-U.S. trade dispute. China does not just knock off U.S. products but many Korean products as well. Some of the top K-Beauty products are knocked off in China and there are many counterfeits being produced and shipped all around the world. There could also be copycats within Korea! Yes, companies in Korea could end up blatantly infringing on your patent.

What do you do then?

If a company is infringing on your patent, you will need to hire the patent lawyer again who will write the company a cease and desist notice. However, this company will most likely have patent lawyers of their own. Their job will be to challenge your patent. They will argue that your patent is illegitimate. Therefore, it will come down to who has the better patent lawyer and who has the bigger pocket. It will be similar to what happens between divorce lawyers. They will know that the longer they can drag this out the more money they will be able to get from their clients.

This is where the real money comes in for patent lawyers. Many patent lawyers want to get to this point. This is because this process could take years, not months. Remember the $300 an hour? If the other company has more money than you the startup will at some point have to give up. This is why if a Korean startup is challenged by a conglomerate like Samsung, it will be a hopeless case. Imagine spending your time and energy in this process instead of your startup. Most Korean startups at this point spend most of their time preparing for court rather than their product or service. By the time it gets to court, the Korean startup is already out of business or out of money.

Should you apply for a Patent in Korea?

NO! This would be a critical mistake. I have personally seen many Korean startups go out of business trying to get a patent and also defend their patent. So what should you do? Your strategy is to focus on finding a manufacturer that will produce your product. It is that simple. Being first to the market should be where your focus is. If you have the budget to go for a patent then go ahead, but for most startups in Korea, their budget is usually low. Don’t waste your time on a patent, rather focus your attention on your business and trying to raise funding, you will thank me in the long run.