What Is a Scope-of-Right Confirmation Trial in Korea? Positive and Negative Trials Explained
Pine IP
March 24, 2026
Patent disputes ultimately converge on one question: does the other party’s technology fall within the scope of my patent, or conversely, does my product or service fall outside the scope of another party’s patent? In Korea, the procedure for obtaining an official determination on that issue is the scope-of-right confirmation trial. The Korean Patent Act allows a patentee or exclusive licensee to request confirmation of the protective scope of its patented invention, and allows an interested party to request confirmation of the protective scope of another party’s patented invention. The procedure presupposes that the registered right is still in force.
The Intellectual Property Trial and Appeal Board, or IPTAB, operates expedited and priority trial systems for scope-of-right confirmation trials related to infringement cases pending in court, or for trials at a pre-dispute or preventive stage where an infringement dispute is substantiated by warning letters or similar materials. As a result, the procedure is often used to clarify the direction of a dispute at a relatively early stage.
This distinction follows Article 135 of the Korean Patent Act, official IPTAB guidance, and KIPO customer-service FAQs. A particularly important point is that a negative scope-of-right confirmation trial may cover an invention that has not yet been launched, which makes it a useful tool for commercialization risk management.
The core function of a scope-of-right confirmation trial is not to decide the validity of the right, but to determine the outer boundary of an existing valid patent right. IPTAB describes the system as a procedure for resolving disputes over the interpretation of the scope of rights between a patentee and a third party through an objective judgment by a national authority. It is therefore closely connected to warning letters, license negotiations, product-launch decisions, and infringement litigation strategy.
According to IPTAB guidance, when a decision that the subject invention “falls within the scope of rights” becomes final, the subject invention is treated as substantially corresponding to infringement; when a decision that it “does not fall within the scope of rights” becomes final, it is treated as not substantially corresponding to infringement. Damages and injunction claims still require separate civil proceedings, but in practice the decision can significantly affect negotiation leverage and the structure of litigation.
The protective scope of a patented invention is determined, in principle, by the matters stated in the claims. The Korean Supreme Court has held that claims should be interpreted objectively and reasonably based on the ordinary meaning of the claim language, while considering the specification and drawings, but that it is not permissible to arbitrarily limit or expand the claims using the specification or drawings. In other words, a scope-of-right confirmation trial cannot be approached at the level of “it feels similar.” It requires a precise element-by-element comparison of each claim.
Even more important is identifying the subject invention. When filing a scope-of-right confirmation trial, the Patent Act requires submission of a description and necessary drawings that allow comparison with the patented invention. In a positive confirmation trial, if the subject invention identified by the claimant differs from the invention actually practiced by the respondent, the legality of the trial itself may become an issue. The Supreme Court has also held that in a positive confirmation trial, the claimant bears the burden of proving that the respondent is actually practicing the invention, and that if the identified invention and the actual practice are not the same, the trial request may be unlawful.
This is where many practical mistakes occur. If a trial is rushed without sufficiently securing the other party’s product manuals, promotional materials, user screens, service flows, teardown photos, sample purchase results, or test reports, the core issue of what should be treated as the subject invention may become unstable. Conversely, if the subject invention is clearly identified and the comparison chart is carefully structured, it becomes much easier to maintain a consistent frame in later negotiations or litigation.
First, from the patentee’s perspective, a positive confirmation trial may be considered when a competitor’s product or service appears to infringe the patent, but the patentee wants an objective determination before moving directly to infringement litigation. Second, from the perspective of a company preparing a product launch or a party that has received a warning letter, a negative confirmation trial may be used proactively to obtain a determination that its current or planned practice does not fall within the scope of another party’s patent. IPTAB expressly states that a negative confirmation trial can cover not only a currently practiced invention but also a future planned invention.
A scope-of-right confirmation trial may also be filed separately for each claim when a patent has multiple claims. If the dispute is concentrated on specific claims, it may be more efficient to design the case around the key claims rather than unnecessarily addressing every claim.
The two procedures are often discussed together in practice, but their purposes are clearly different. An invalidation trial challenges whether a registered patent has statutory grounds for invalidity and seeks to eliminate its effect retroactively or prospectively. A scope-of-right confirmation trial assumes that the patent is valid and asks how far the protective scope of that right extends. If the opposing patent itself appears weak, invalidation may be central. If the key question is whether your product falls within the scope even assuming the patent is valid, the scope-of-right confirmation trial becomes central. In real disputes, the two procedures are often pursued in parallel or combined with correction and invalidation strategies.
A scope-of-right confirmation trial can be requested only while the right is still alive. The Supreme Court has held that there is no legal interest in seeking confirmation of the scope of an already expired patent, and IPTAB practice follows this position. For cases approaching expiration, filing timing itself becomes part of the strategy.
Another issue is amendment. As a rule, the Patent Act does not allow amendments to a trial request that change its gist. However, certain exceptions apply in scope-of-right confirmation trials. For example, in a positive confirmation trial, if the respondent argues that the identified subject invention differs from the actual practice, the claimant may amend the description or drawings of the subject invention to match the actual practice within a permitted scope. Even so, carefully identifying the subject invention from the initial filing stage is much safer.
A scope-of-right confirmation trial is not decided by a single document. In practice, four factors often determine the outcome.
First, establish the claim-interpretation baseline.
The comparison standard should be set in advance, including claim-language interpretation, the permitted use of the specification, and possible doctrine-of-equivalents issues.
Second, turn the subject invention into evidence.
For a product, this may require sample acquisition, teardown, and photographs. For a service, screen captures and user-flow records may be needed. For a method invention, materials showing the process structure should be secured in advance.
Third, choose the correct trial type.
At the early stage of the matter, determine whether a positive trial is appropriate for a right holder, whether a negative trial is appropriate for an implementer, or whether an invalidation trial should be pursued in parallel.
Fourth, link the procedure to business timing.
The filing strategy should consider launch schedules, investment timelines, customer negotiations, warning-letter responses, and possible infringement litigation.
At this point, a scope-of-right confirmation trial becomes not merely a legal procedure, but an IP strategy connected to business decision-making.
Yes. A negative scope-of-right confirmation trial can cover not only an invention currently being practiced, but also a future planned invention. This means it can be considered as a patent-risk review tool before launch.
As a rule, no. The Supreme Court has held that there is no legal interest in confirming the scope of an already extinguished patent right, and IPTAB practice follows the same approach.
Caution is needed. In a positive confirmation trial, the subject invention identified by the claimant must be the same as the respondent’s actual practice, and the claimant bears the burden of proof. If the subject invention is not properly identified, the trial request itself may be unlawful.
The outcome of a scope-of-right confirmation trial can be summarized in two questions.
How should the claims be interpreted?
How accurately has the subject invention been identified?
Patent disputes are not resolved by impression or assumption. Claims, specifications, actual practice, market materials, warning letters, and launch schedules must be connected into one strategy. Pine IP Firm treats scope-of-right confirmation trials not as a mere procedure, but as a practical strategy linking dispute prevention, negotiation, and litigation.
