On November 10, 2017, the
Korean Patent Court affirmed the lower court decision that the patent right of
method claims might be exhausted. (Case No. 2017Na1001 decision)
The courts pointed out
that a patentee may not seek double compensation through product claims and
method claims. Patentees may be allowed to avoid patent exhaustion through simply
drafting patent claims to describe a method together with a product or an
apparatus.
The courts held that the
sale of an item that substantially embodies the method exhausts the method
patent. The product “substantially embodies” a patent where (1) it has “no
reasonable non-infringing use” other than to practice a patent and (2) it
embodies “essential features of the patented invention”.
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