As the term "original patent" lacks any specific legal meaning, it is among the potentially misleading terms misused in the marketplace. However, the Fair Trade Commission (FTC) recently ruled that an ad claiming ownership of an original patent constituted an unfair indication or ad. In doing so, the FTC also specified the requirements for claiming an original patent.(1)


The Fair Labeling and Advertisement Act (the act) prohibits any form of labelling or advertising that is likely to deceive or mislead consumers. Specifically, article 3(1)(1) of the act stipulates that acts of false or exaggerated labelling or advertising are considered unfair. Article 3(1) of the Enforcement Decree relating to the act defines "[f]alse or exaggerated labeling or advertizing" as those which differ from reality or inflate facts.


Party A held a registered patent relating to a film-type leak point sensor(2) that used a specific printing technique. The scope of Party A's rights was limited to this technique. Despite the existence of other domestic and foreign patents relating to film-type leak point sensors prior to the registration of Party A's patent, Party A advertised on their website that they held the original patent for film-type leak point sensors.


In its decision, the FTC stated that Party A's actions constituted an act of exaggerated advertising that could mislead consumers and hinder fair trade. The grounds of the decision were as follows.

The FTC recognised the ad as being exaggerated based on the following facts:

  • The term "original patent" would normally refer to the core patent that forms the basis of a high added-value creation in a specific field.
  • In Party A's patent, the specific printing technique was recognised as having an inventive step over an existing film-type leak point sensor invention to which it was compared. However, other elements could easily be derived from the existing invention.
  • Party A had not provided its technology to its competitors, which manufactured and sold general film-type leak point sensors that did not use the specific printing technique of Party A's patent.

Consumer confusion
The FTC found that there was a risk that consumers viewing the ad would be misled into believing that Party A held the patent for all film-type leak point sensor products.

Hindering of fair trade
The FTC found that whether a purveyor has the original patent in the leak point sensor field would be an important factor when considering a purchase, so there was a risk of consumers' rational decision-making and the fair-trade order being hindered.


In this case, Party A suggesting that they held the original patent for all kinds of film-type leak point sensors – despite the scope of their patent extending only to products that use a specific printing process – was considered exaggerated advertising. Generally, it is an act of unfair labelling or advertising to suggest that an original patent is held for technology beyond the limited scope of that covered by a registered patent.

Following this decision, the FTC may now be expected to respond more actively when presented with ads relating original patents. In the case discussed, only suspension and prohibition orders were imposed on Party A, but the severest penalties allowed under law extend to up to two years' imprisonment or a fine of up to W150 million (approximately $130,000). Companies should thus take care when using the term "original patent" in advertising copy.

For further information on this topic please contact Jae-Sang Lim or Ben Yuu at NAM & NAM by telephone (+82 2 753 5477) or email ([email protected] or [email protected]). The NAM & NAM website can be accessed at


(1) Case 2018Seoso1572.

(2) Leak point sensors detect the leakage of various liquids (eg, water, oil or chemicals) and identify the location of the leak. They are used to prevent harm to human life or damage to property that could occur due to the leakage of hazardous chemicals (eg, in industrial facilities).