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Patent

OverView Laying open of Publication for Public Inspection Publication
Decision as to grant a patent right Substantial Examination Registration
Amendment of Patent Application Appeal and Trial Filing an Application
Formality Examination Accelerated Examination Deferred Examination
  • OverView
    After a patent application is filed with the KIPO, a patent right is granted through various steps.
    The Korean Patent system is characterized by:
     

    First-to-File Rule;
    Publication of Unexamined Application; and
    Request for Examination
    The procedures for registering a utility model are same as that of patent except for some notification periods.

  • Filing an Application
    Ⅰ) Applicant
      Either the inventor of an invention or his assignee can file a patent application for the invention with KIPO. The applicant may be either a natural person or a juristic person.
    Ⅱ) Documents Required
      A person who desires to obtain a patent must submit to the Commissioner of KIPO the following documents:
      an application stating the name and address of the inventor and the applicant (including the name of a representative, if applicable, the date of submission, the title of the invention, and priority data (if the right of priority is claimed);
      a specification setting forth the following matters: the title of the invention; a brief description of drawings (if any); a detailed description of the invention; and claim(s);
      drawing(s), if any;
      an abstract;
      the priority document if the right of priority is claimed; and
      a power of attorney, if necessary.
    Ⅲ) Claim of Priority
      In order to enjoy the priority right, an application should be filed in the KIPO within 1 year from the filing date of the priority application(priority date). The priority document above mentioned may be submitted within one year and four months from the priority date. If the priority document is not submitted within that period of time, the claim of priority is considered not to have been claimed.

  • Formality Examination
    When a patent application is submitted to KIPO, it is checked to ensure that all requirements necessary to accord the application a filing date have been satisfied. Under the Article 11(1) of the Enforcement Regulation of the Patent Act, falling in any of the following instances the application will be returned to the submitter without any application number being assigned thereto and will be treated as if it had not been submitted:
      where the kind of the application is not clear;
      where the name or address of a person (or juristic person) who is initiating the application procedure (i.e. the applicant) is not described;
      where the application is not written in Korean;
      where the application is not accompanied by the specification/claims or drawings (only for inventions directed to articles); or
      where the application is submitted, by a person who has no address or place of business in the Republic of Korea, without using an agent in the Republic of Korea.
    Once the application has been satisfied with the requirements, KIPO assigns an application number and examines as to whether or not other formality requirements under the Patent Act have been met. If KIPO discovers that a document or information is missing, such as power of attorney or the name of the representative of the juristic person, it will issue a notice of amendment requesting the applicant to supplement the missing data, within the specified time limit. The applicant may request an extension of the designated time period.

    If the applicant does not comply with such a request until the time limit, the patent application will be considered not to have been filed.
  • Laying open of Publication for Public Inspection
    Applications that have not yet been published will be automatically laid-open in the official gazette
    called "Patent Laid-open Gazette" after 18 months from the filing date in the Republic of Korea
    or, if the right of priority is claimed from an earlier foreign filing, from the priority date.

    The laid-open publication may be made, upon the request of the applicant, prior to the eighteen month
    period. This will provide an earlier protection to a patent application which is being infringed.

    Once a patent application has been laid-open, any documents relating to the application are made
    available for public inspection. Any person may submit to the Commissioner of KIPO information
    relevant to the patentability of the invention concerned together with any supporting evidence.
    (Information can be provided before a patent application is laid-open)


    The Patent Act offers a special legal effect upon a laid-open patent application: under Article 65(1), if the
    applicant sends a warning letter to an alleged infringer after his application has been laid-open, any
    subsequent computation of a reasonable amount of compensation will be reckoned from the date when
    the infringer receives the warning letter. The right to claim compensation cannot be exercised before
    the relevant patent right is registered.
  • Substantial Examination
    Ⅰ) Request for Examination
      A patent application will be taken up for examination only if a request for examination is made either by the applicant or by any interested party within 5 years from the filing date of the application. If no request for examination is made within this five-year period, the patent application is deemed to have been withdrawn. Once a request for examination has been duly filed, it cannot be withdrawn. A patent application is taken up for examination in the order of filing the request for examination therefore.
    Ⅱ) Requirement for Registration
      For a patent to be registered under the Patent Law, it should meet the following requirements;
      It should fall under the definition of invention under the Patent Law
      It should have Novelty, Industrial Applicability, and Inventive Step
      It should not fall into any of the categories of unregistable patent
  • Decision as to grant a patent right
    If a examiner finds a ground for rejection of a patent application, a notice of preliminary rejection will be issued; and the applicant will be given an opportunity to submit a response to the preliminary rejection within the time limit designated by the examiner. Such time limit is extendable to the request for an extension by the applicant.

    In responding to the preliminary rejection, the applicant may file an argument with or without an amendment to the specification and/or claims. If the examiner determines that the argument is without merit and the ground for rejection has not been overcome, he will issue a notice of final rejection of the patent application.

    If no grounds are found for rejecting a patent application, the examiner shall, grant a patent right.

  • Registration
    When a patent applicant receives a notice of decision to grant a patent he should pay, as a registration fee, the first 3 years' annuities within 3 months from the date of receipt of such notice.

    In case he fails to pay the registration fee within the three-month period the registration can still be made by paying twice the usual fee within 6 months after the expiration of the three-month period. Therefore, if the registration fee is not paid within 9 months from the date of receipt of a notice of decision to grant a patent, the patent application will be deemed to have been abandoned.
  • Publication
    Where the examiners finds no grounds for refusal of a patent application, KIPO publishes the patent registration after the patent applicant pays the registration fee.
    Where the examiners finds no grounds for refusal of a patent application, KIPO publishes the patent
    registration after the patent applicant pays the registration fee. Once a patent has been published in the Patent Registration Gazette, any person may file an invalidation trial against the registration of a patent betweenthe date on which the patent is registered and the date that marks a lapse of three months since the publication date
  • Appeal and Trial
    The applicant may lodge an appeal against the examiner's final rejection within 30 days from the date of receipt of the notice of final rejection. Any party which doubts the validity of a right may request a trial for invalidation of patent.

    Such appeal and trial procedure are conducted in the Industrial Property Tribunal which was established by merging the former Trial Board and Appeal Board as of March 1, 1998 in KIPO.

    The Industrial Property Tribunal's decision may be appealed to the Patent Court which was also established as an appellate level court and has been operating from March 1, 1998.

    An appeal against the Patent Court's decision may be reviewed by the Supreme Court.
  • Accelerated Examination
    According to Article 61 of the Patent Act, the Commissioner of KIPO may have a particular category of
    patent application examined ahead of other patent applications.

    KIPO's Regulation Concerning the Procedure for Handling Requests for Accelerated Examination provides
    that applications eligible for such expedited examination are limited to the following categories:
      (1) in case it is considered that an invention has been commercially worked by a person who is not the applicant, after his application has been laid-open; and
    (2) in case the application is one of the kinds of applications stipulated in the Presidential decree and
    regarded as urgent and
    (ⅰ) it relates to goods for defense industry and processes for the preparation thereof, as defined in
    the Special Measures Act Relating to Defense Industry.

    (ⅱ) it relates to facilities for the prevention of environmental pollution or a process thereof

    (ⅲ) it is directly involved in the promotion of export as evidenced by export records, a letter of credit, a
    request for validating patent rights from the buyer of expected goods, or documents related to the adoption
    of international standards.

    (ⅳ) it is made officially by an employee of the central government, a local government(including
    application filed by exclusive organizations for technology transfer and commercialization, which were
    established in national and public school)

    (ⅴ) patent applications that the KIPO Commissioner and the heads of patent offices in other countries
    agreed to examine on a priority basis

    (ⅵ) applications about which anyone requests one of the KIPO-approved agencies(namely the Korea
    Institute of Patent Information/WIPS Co., Ltd./the Korea IP Protection Technology Institute Co., Ltd./and the
    IP Solution Co., Ltd.) to conduct the prior art search and asks the agency to forward the search results
    to the KIPO commissioner.

    (ⅶ) and so forth

    A person who desires an accelerated examination of his application must submit a written request
    together with a statement explaining the necessity thereof in detail and any evidence supporting the
    statement.
  • Deferred Examination
    If necessary, Applicants can have the examination deferred for up to six months from the date of the
    examination request.

    Instead of specifying a preferred date, applicants can get first action from KIPO within three months
    of the preferred examination date provided the preferred date is at least 18 months after the date of the
    examination request and within five years of the application date.
  • Amendment of Patent Application
  • An applicant may amend the description or drawings attached to a patent application before the examiner services a certified copy of a decision to grant a patent, after an applicant received a notification of the grounds for rejection, the applicant may only amend the description or drawings within the period designated for submitting arguments or at the time of a request for reexamination.

    At the time of submitting arguments against a notice of the grounds for final rejection or a request for reexamination, an amendment to the claims can only be made in cases falling under one of the following subparagraphs:

    (ⅰ)  to delete a claim, or narrow the scope of a claim by defining or adding an element to the claim;
    (ⅱ)  to correct a clerical error;
    (ⅲ)  to clarify an ambiguous description; or
    (ⅳ)  where the amendment is beyond the scope of the features disclosed in the description or drawing
    (s) originally attached to the patent application, to amend the claims so as to revert to the scope of
    a claim before the amendment or to amend the claims in accordance with subparagraphs (i)
    through (iii) while reverting.


 


 
   
 

 

 
 
 
 
 
 
 
 
 
 
 
 

 

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