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I would like to patent a product in the USA but someone has this product Patented in Sounth Korea, I have called the KIPO, Korean Intellectual Property Offcice, and this patent is not registered in the US patent and trademark office. Can I go ahead and register it in the USA patent office? what are the chances I will get the registration denied?

thanks in advance for any help.

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The requierements for a patent are

  • novelty

  • inventive step (called non obviousness in the US)

  • usability.

Novelty is anchored in 35 USC 102, which reads

(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—

(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention;

(2) the claimed invention was described in a patent issued under section 151 , or in an application for patent published or deemed published under section 122(b) , in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

[...]

(Leaving out everything that follows because it treats special cases and isn't relevant here)

Assuming the reason you know about the patent in South Korea is because the South Korean patent application has been published 35 USC 102 (a) (1) contains your answer -> it will get denied if the prior art publication (the korean patent) is found by the examiner.

If it hasn't been published the situation is a little more complex. (For a complete answer see here), in summary, if the patent application is ever published, it can be held against your US application.

If you are named as an inventor on the korean application, the situation is even more complex, but I assume from your question that you are not, so I won't elaborate.

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    One important consideration that is not clear from the question is that you must be the inventor of the invention. You can not claim the invention if someone else was the inventor and you are merely copying their invention. 35 USC 101 states "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." – Patent Pending Guide May 4 '17 at 21:04
  • @PatentPendingGuide good catch, though being the second inventor would be okay – DonQuiKong May 4 '17 at 21:19

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