|
CHAPTER II : Requirements for Patents and Patent
Applications
Article
29 ーRequirements for Patents―
(1) Inventions which have industrial applications may be patentable
unless they fall under any of the following subparagraphs:
(ァ) inventions publicly known or worked in the Republic of Korea
prior to the filing of the patent application; or
(ア) inventions described in a publication distributed in the Republic
of Korea or in a foreign country prior to the filing of the patent
application.
(2) Notwithstanding paragraph (1), where an invention could easily
have been made prior to the filing of the patent application by
a person having ordinary skill in the art to which the invention
pertains, on the basis of an invention referred to in each subparagraph
of paragraph (1), a patent shall not be granted for such an invention.
(3) Notwithstanding paragraph (1), where an invention for which
a patent application is filed is identical with an invention or
device described in the specification or drawings initially attached
to another patent application which was laid open or published
after grant for public inspection after the filing date of said
patent application or to a utility model application which was
published after grant for public inspection after the filing date
of said patent application, a patent shall not be granted for
the invention of the said patent application. This provision shall
not apply, however, in cases where the inventor of the patent
application concerned and the inventor of the other patent or
utility model application are the same person or where the applicant
of the patent application and the applicant of the other patent
or utility model application are the same person at the time of
filing.
(4) Where the other patent or utility model application under
paragraph (3) is an international application which is deemed
to be a patent application under Article 199(1) of this Law or
which is deemed to be a utility model registration application
under Article 57(1) of the Utility Model Law (including an international
application considered to be a patent application under Article
214(4) of this Law or a utility model application under Article
71(4) of the Utility Model Law), in applying the provisions of
paragraph (3), "laid open" shall read "laid open or was the subject
of an international publication under Article 21 of the Patent
Cooperation Treaty" and "an invention or device described in the
specification or drawings originally attached" shall read "an
invention or device described both in the specification, claims,
or drawings of the international application as of the international
filing date, and in the translated version thereof."
Article
30 ーInventions Deemed to be Novel―
(1) If a patentable invention falls under any of the following
subparagraphs, it shall be recognized to be novel provided that
the patent application therefor is filed within six months of
the applicable date:
(ァ) when a person having the right to obtain a patent has caused
his invention to fall within the terms of any of the subparagraphs
in Article 29(1) by conducting an experiment on it, publishing
the invention in printed matter, or presenting it in writing at
an academic meeting held by an academic organization;
(ア) when, against the intention of the person having the right
to obtain a patent, the invention falls within the terms of any
of the subparagraphs in Article 29(1); or
(ィ) when a person having the right to obtain a patent has caused
his invention to fall within the terms of any of the subparagraphs
of Article 29(1) by displaying his invention at an exhibition
which satisfies any of the following requirements:
(a) exhibitions held by the Government or a local governmental
entity;
(b) exhibitions held by persons authorized by the Government or
a local governmental entity;
(c) exhibitions held in a foreign country with the authorization
of the government; or
(d) exhibitions held in the territory of a country party to a
treaty by the government of the said country or by persons authorized
by the said government.
(2) Any person desiring to take advantage of the provisions of
paragraph (1)(i) or (iii) shall submit, simultaneously with his
patent application, a written statement to that effect to the
Commissioner of the Korean Industrial Property Office, to whom
he shall also submit, within thirty days from the filing date
of the patent application, a document proving the relevant facts.
Article
31 ーPatent for Plant Invention―
Any person who invents a variety of plant which reproduces itself
asexually may obtain a plant patent therefor.
Article
32 ーUnpatentable Inventions―
Inventions liable to contravene public order or morality or to
injure public health shall not be patentable, notwithstanding
the provisions of Article 29(1) or (2).
Article
33 ーPersons Entitled to Obtain a Patent―
(1) Any person who makes a new invention or his successor shall
be entitled to obtain a patent in accordance with the Patent Law;
however, employees of the Korean Industrial Property Office and
the Industrial Property Tribunal shall not be entitled to obtain
patents during their employment at the Office except in the case
of inheritance or bequest.
(2) If two or more persons jointly make an invention, the right
to obtain a patent shall be jointly owned.
Article
34 ーPatent Application Filed by an Unentitled Person; Protection
of Lawful Holder of the Right―
If a patent cannot be granted because an application was filed
by a person who is not the inventor or a successor to the right
to obtain a patent (hereinafter referred to as an "unentitled
person") under Article 62(2), a subsequent application filed by
the lawful holder of the right shall be deemed to have been filed
on the date of filing of the initial application filed by the
unentitled person. This provision shall not apply, however, if
the subsequent application is filed by the lawful holder of the
right more than thirty days after the date of the application
filed by the unentitled person was rejected.
Article
35 ーPatent Granted to an Unentitled Person;
Protection of Lawful Holder of the Right―
If a decision of revocation becomes final on the basis of Article
69(1)(ii) or a decision of invalidation becomes final as prescribed
in Article 133(1)(ii), a subsequent application filed by the lawful
holder of the right shall be deemed to have been filed on the
filing date the revocated or invalidated application; however,
this provision shall not apply if the subsequent application is
filed more than two years after the publication date of the first
application or more than thirty days after the decision of revocation
or invalidation becomes final.
Article
36 ーFirst-to-File Rule―
(1) Where two or more applications relating to the same invention
are filed on different dates, only the applicant of the application
having the earlier filing date may obtain a patent for the invention.
(2) Where two or more applications relating to the same invention
are filed on the same date, only the person agreed upon by all
the applicants after consultation may obtain a patent for the
invention. If no agreement is reached or no consultation is possible,
none of the applicants shall obtain a patent for the invention.
(3) Where a patent application has the same subject matter as
a utility model application and the applications are filed on
different dates, paragraph (1) shall apply mutatis mutandis
whereas if they are filed on the same date, paragraph (2) shall
apply mutatis mutandis. However, the provision of paragraph
(2) shall not apply in any case where a patent application is
made on the same date as a utility model registration application
(including a patent application which is deemed to be made on
the same date as a utility model registration application under
Article 53(3)), as prescribed in Article 53 as a dual application.
(4) Where a patent application or utility model application is
invalidated or withdrawn, such application shall, for the purposes
of paragraphs (1) to (3), be deemed never to have been filed.
(5) A patent application or utility model application filed by
a person who is not the inventor, creator, or successor in title
to the right to obtain a patent or utility model registration
shall, for the purposes of paragraphs (1) to (3), be deemed never
to have been filed.
(6) The Commissioner of the Korean Industrial Property Office
shall in the case of paragraph (2), order the applicants to report
to him the results of the consultation within a designated period
of time. If such report is not submitted within the designated
period, the applicants shall be deemed not to have reached an
agreement within the meaning of paragraph (2).
Article
37 ーTransfer of the Right to Obtain a Patent―
(1) The right to obtain a patent may be transferred.
(2) The right to obtain a patent shall not be the subject of a
pledge.
(3) In the case of joint ownership of the right to obtain a patent,
a joint owner shall not assign his share without the consent of
all the other joint owners.
Article
38 ーSuccession to the Right to Obtain a Patent―
(1) The succession to the right to obtain a patent before the
filing of the patent application shall not be effective against
third persons unless the successor in title files the patent application.
(2) Where two or more applications for a patent are filed on the
same date on the basis of a right to obtain a patent for the same
invention derived by succession from the same person, the succession
to the right to obtain the patent by any person other than the
one agreed upon by all the patent applicants shall not be effective.
(3) Paragraph (2) shall also apply where a patent application
and a utility model application are filed on the same date, on
the basis of the right to obtain a patent and utility model registration
for the same invention and device which has been derived by succession
from the same person.
(4) The succession to the right to obtain a patent after the filing
of the patent application shall not be effective unless the applicant
files a notice of change of applicant, except in the case of inheritance
or other general succession.
(5) Upon inheritance or other general succession with respect
to the right to obtain a patent, the successor in title shall
notify the Commissioner of the Korean Industrial Property Office
accordingly without delay.
(6) Where two or more notifications are made on the same date,
on the basis of a right to obtain a patent for the same invention
that has been derived by succession from the same person, a notification
made by any person other than the one agreed upon after consultations
among all the persons who made notifications shall not be effective.
(7) Article 36(6) shall apply mutatis mutandis to the cases
under paragraphs (2), (3) or (6).
Article
39 ーIn-Service Inventions―
(1) An employer, a legal entity, or the Government or a local
public entity (hereinafter referred to as a "employer") shall
have a non-exclusive license to the patent right concerned, where
an employee, an executive officer of such a legal entity, or a
public official (hereinafter referred to as a "employee") or successor
in title has obtained a patent for an invention which, by reason
of its nature, falls within the scope of the business of the employer
and an act or acts resulting in the invention(hereinafter referred
to as "in-service invention") were part of the present or past
duties of the employee
(2) An in-service invention made by a public official shall pass
to the State and the patent right shall thereby revert to the
State.
(3) In the case of an invention made by an employee which is not
an in-service invention, any contractual provision or any provision
of service regulation providing in advance that the right to obtain
a patent or the patent right shall pass to the employer or that
the employer shall have an exclusive license on such invention,
shall be null and void.
(4) Notwithstanding Article 6 of the National Property Law, the
disposal and management of a patent right which has reverted to
the State, in accordance with paragraph (2), shall be governed
by the Commissioner of the Korean Industrial Property Office.
(5) A disposal and management of a patent right under paragraph
(4) which has reverted to the State shall be prescribed by Presidential
Decree.
Article
40 ーRemuneration for In-Service Inventions―
(1) The employee shall have the right to obtain reasonable remuneration
when he has transferred to the employer the right to obtain a
patent or the patent right with respect to an in-service invention,
or has given the employer an exclusive license in accordance with
a contract or service regulation.
(2) The amount of the remuneration provided for in paragraph (1)
shall be calculated in accordance with the profits to be realized
by the employer from the invention and the extent of the employer's
contribution to the creation of the invention; any suggestion
made by the employee as to the method of settlement shall also
be taken into account.
(3) If the State succeeds to an in-service invention made by a
public official, the State shall provide reasonable remuneration
to the public official. Matters relating to the payment of remuneration,
etc., shall be prescribed by Presidential Decree.
(4) Deleted.
Article
41 ーInventions Necessary for National Defense, etc.―
(1) If an invention is necessary for the national defense, the
Government may order an inventor, an applicant, or an agent not
to file a patent application for such invention in foreign patent
offices concerned or to keep such invention confidential. However,
if such persons obtain permission from the Government, they may
file an application therefor in foreign patent offices.
(2) If an invention filed with the Korean Industrial Property
Office is considered necessary for national defense, the Government
may refuse for grant a patent and, for reasons of national defense
such as in time of war, incident or other similar emergency, may
expropriate the right to obtain a patent therefor.
(3) The Government shall pay reasonable compensation for the loss
arising from maintaining secrecy under paragraph (1).
(4) The Government shall pay reasonable compensation in the event
that a patent is not granted, or the right to obtain a patent
is expropriated under paragraph (2).
(5) If there has been a violation of an order prohibiting the
filing of an application for an invention in a foreign patent
office concerned or of an order to maintain secrecy under paragraph
(1), the right to obtain a patent therefor shall be deemed to
be abandoned.
(6) If there has been a violation of an order to maintain secrecy
under paragraph (1), the right to request the payment of compensation
for the loss arising from maintaining secrecy shall be deemed
to be abandoned.
(7) Matters relating to the procedure, etc., for prohibiting the
filing of an application abroad, proceedings for maintaining secrecy
under paragraph (1), or for expropriation or payment of compensation
under paragraphs (2) to (4) shall be prescribed by Presidential
Decree.
Article
42 ーPatent Application―
(1) Any person desiring to obtain a patent shall file a patent
application with the Commissioner of the Korean Industrial Property
Office stating the following:
(ァ) the name and the domicile of the applicant (in the case of
a legal entity, the title, place of business and the name of its
representative);
(ア) the name and the domicile, or place of business, of the agent,
if any;
(ィ) the date of filing;
(イ) the title of the invention;
(ゥ) the name and the domicile of the inventor; and
(ウ) matters prescribed in Articles 54(3) and 55(2) (only when
claiming a priority right).
(2) The patent application under paragraph (1) shall be accompanied
by a specification, drawing or drawings (if necessary), and an
abstract stating the following:
(ァ) the title of the invention;
(ア) a brief explanation of the drawings;
(ィ) a detailed description of the invention; and
(イ) claim(s).
(3) The detailed description of the invention under paragraph
(2)(iii) shall state the purpose, construction, and effect of
the invention in such a manner that it may easily be carried out
by a person having ordinary skill in the art to which the invention
pertains.
(4) The claim(s) under paragraph (2)(iv) shall describe the matter
for which protection is sought in one or more claims (hereinafter
referred to as "claim(s)") and the claim(s) shall comply with
each of the following sub-paragraphs:
(ァ) the claim(s) shall be supported by a detailed description
of the invention;
(ア) the claim(s) shall define the invention clearly and concisely;
and
(ィ) the claim(s) shall define only the features indispensable
for the constitution of the invention.
(5) Details concerning the drafting of claim(s) under paragraph
(2)(iv) shall be prescribed by Presidential Decree.
(6) Details concerning the description of an abstract under paragraph
(2) shall be prescribed by the Ordinance of the Ministry of Commerce,
Industry, and Energy.
Article
43 ーAbstract―
An abstract under Article 42(2) shall not be interpreted to define
the scope of the invention for which protection is sought but
rather, shall serve as a technical information document.
Article
44 ーJoint Applications―
Where the right to obtain a patent is owned jointly under Article
33(2), all the joint owners shall apply for the patent application
jointly.
Article
45 ーScope of One Patent Application―
(1) A patent application shall relate to one invention only. However,
a group of inventions so linked as to form a single general inventive
concept may be the subject of a patent application.
(2) The requirements for one patent application under paragraph
(1) shall be prescribed by Presidential Decree.
Article
46 ーAmendment of Procedure―
The Commissioner of the Korean Industrial Property Office, the
president of the Industrial Property Tribunal or the presiding
trial examiner may order amendments to a procedure relating to
a patent, designating a time limit if such a procedure falls under
any of the following subparagraphs:
(ァ) where the procedure has not complied with the provisions of
Article 3(1) or 6;
(ア) where the procedure has not complied with the formalities
specified in the Patent Law or Presidential Decree thereof; or
(ィ) where fees required in accordance with Article 82 have not
been paid.
Article
47 ーAmendment of Patent Application―
(1) An applicant may, excluding the cases specified in paragraph
(2), amend any specification or drawings attached to a patent
application to the extent that it does not change the subject
matter of the specification or drawings originally attached to
the application within one year and three months from the date
specified in any of the following subparagraphs:
(ァ) the filing date of the patent application;
(ア) the priority date, where a patent application contains a priority
claim under Article 54(1);
(ィ) the filing date of the earlier application, as prescribed
in Article 55(1), where a patent application contains a priority
claim under the provisions of Article 55(1); or
(iv) the earliest filing date among the filing dates of two or
more applications which are the basis for claiming a priority
right in a patent application under Article 54(1) or 55(1).
(2) After the expiration of one year and three months from any
of the dates specified in any of the subparagraphs of paragraph
(1), but prior to the transmittal of a certified copy of the decision
to grant a patent, an applicant may amend the specification or
drawings attached to the application to the extent that it does
not change the scope of the subject matter, in any of the following
cases:
(ァ) where the amendment is made simultaneously with a request
for an examination of the application under Article 59;
(ア) where the amendment is made within three months from receipt
of the notice under Article 60(3);
(ィ) where the amendment is made within the time limit designated
for submission of arguments under Article 63; or
(イ) where the amendment is made within thirty days from the filing
date of a request for trial against a final rejection under Article
132ter.
Article
48 ーChange of Subject Matter―
An amendment enlarging, restricting or changing the scope
of patent claims regarding the features disclosed in the specification
or drawing originally attached to the application made prior to
the transmittal of a certified copy of the decision to grant a
patent shall be deemed not to change the essential subject matter
of the specification.
Article
49 ーAmendment of Specification, etc. and Change of Subject
Matter―
(1) Where an amendment to a specification or drawings attached
to a patent application, made prior to the transmittal of a certified
copy of the decision to grant a patent, is determined to have
changed the subject matter of the specification or drawings after
the establishment of the patent right is registered, the patent
application shall be deemed to have been filed at the time when
the amendment in writing was submitted.
(2) If a dual application, as prescribed in Article 53,
is recognized to modify the essentials of such matters,
as stated in the claims of the utility model registration in the
specification, which are initially attached to the application
for utility model registration after the establishment of the
patent right is registered, said dual application shall be deemed
to have been filed at the time when the application in writing
was submitted.
Article
50 Deleted
Article
51 ーRejection of Amendment―
(1) Where an amendment of the specification or drawings attached
to a patent application, made prior to the transmittal of a certified
copy of the decision to grant a patent, would change the subject
matter thereof, the examiner shall reject the amendment by a decision.
(2) Where a decision to reject an amendment under paragraph (1)
has been made, the examiner's decision with respect to the patent
application concerned shall not be rendered until the expiration
of thirty days from the transmittal of a certified copy of such
decision.
(3) Where an applicant has requested a trial under Article 132quater
against a decision to reject an amendment under paragraph (1),
the examiner shall suspend the examination of the patent application
until the trial decision has become final and conclusive.
(4) Deleted.
(5) The decision to reject an amendment under paragraph (1) shall
be made in writing and shall state the reasons therefor.
(6) Deleted.
Article
52 ーDivision of Patent Application―
(1) An applicant who has filed a patent application comprising
of two or more inventions may divide the application into two
or more applications in accordance with the time period allowed
for amendment as prescribed under Article 47 or within the time
limit by which the specification or drawings attached to the patent
application may be amended.
(2) A patent application divided under paragraph (1) (hereinafter
referred to as a "divisional application") shall be deemed
to have been filed at the time of filing of the original patent
application. However, in applying the provisions of the following
subparagraphs to said divisional application, such an application
shall be deemed to be made at the time when the divisional application
was filed:
(ァ) in the case where Article 29(3) of this Law or Article 5(3)
of the Utility Model Law is applicable when the divisional application
falls under an another patent application under Article 29(3)
of this Law or a patent application under Article 5(3) of the
Utility Model Law;
(ア) in the case where Article 30(2) is applicable;
(ィ) in the case where Article 54(3) is applicable; or
(イ) in the case where Article 55(2) is applicable.
(3) In a divisional application, any person claiming priority
as prescribed in Article 54, may file the documents as prescribed
in paragraph (4) of the said Article with the Commissioner of
the Korean Industrial Property Office within three months after
filing a divisional application, regardless of the period as prescribed
in the said paragraph of the said Article.
Article
53 ーDual Application―
(1) A person who makes an application for utility model registration
may make an application for patent (hereinafter referred to as
a "dual application") within the limit of such matters as stated
in the claims of the utility model registration in the specification,
which are initially attached to the application for said utility
model registration within one year from the date when the establishment
of a utility model right has been registered.
(2) A person who makes a dual application under paragraph (1)
shall, at the time when an application for patent is made, indicate
the purpose thereof and the application for utility model registration,
which forms the basis thereof in an application for a patent.
(3) When a dual application is carried out pursuant to paragraph
(1), the application for patent shall be deemed to have been filed
on the filing date of the utility model application. However,
in a case where the provisions of the following subparagraphs
apply to such an application for patent, it is deemed to be made
at the time when said dual application is made:
(ァ) in the case where Article 29(3) of this Law or Article
5(3) of the Utility Model Law is applicable when the application
for patent falls under an another patent application under Article
29(3) of this Law or a patent application under Article 5(3) of
the Utility Model Law;
(ア) in the case where Article 30(2) is applicable;
(ィ) in the case where Article 54(3) is applicable; or
(イ) in the case where Article 55(2) is applicable.
(4) A person who claims a priority, as prescribed in Article
54, in making an application for a patent under paragraph
(1) may, notwithstanding the provision of paragraph (4) of said
Article, submit such documents as prescribed in said paragraph
to the Commissioner of the Korean Industrial Property Office within
three months after he makes the dual application.
Article
54 ーPriority Claim under Treaty―
(1) If a national of one of the countries which recognizes under
a treaty a right of priority for a patent application filed by
a national of the Republic of Korea, claims the right of priority
for a patent application in the Republic of Korea on the basis
of the initial application for the same invention in his country
or in one of the said countries, the filing date of the initial
application in the foreign country shall be deemed to be the filing
date in the Republic of Korea for the purposes of Articles 29
and 36. Where a national of the Republic of Korea has filed a
patent application in a country which recognizes under a treaty
the right of priority for patent applications filed by nationals
of the Republic of Korea, and claims the right of priority for
a patent application in the Republic of Korea on the basis of
the initial application for the same invention in the said country,
this provision shall also apply.
(2) A person intending to claim the right of priority in accordance
with paragraph (1) shall file a patent application claiming the
right of priority within one year from the filing date of the
initial application.
(3) A person intending to claim the right of priority in accordance
with paragraph (1) shall specify such claim, the name of the country
in which the initial application was filed and the filing date
of such application in the patent application which he files in
the Republic of Korea.
(4) A person who has claimed the right of priority in accordance
with paragraph (1) shall submit to the Commissioner of the Korean
Industrial Property Office a written statement setting forth the
filing date of the application and a copy of the specification
and drawings of the initial application certified by the government
of the country where the initial application was filed within
one year and four months from the earliest among the dates prescribed
in the following subparagraphs:
(ァ) the date of the application first filed in the country which
is a party to a treaty;
(ア) the filing date of the earlier application which would be
the basis for claiming a priority right in cases where a patent
application contains other priority claims in accordance with
Article 55(1); or
(ィ) the filing date of the application which would be the basis
for claiming a priority right in cases where a patent application
contains other priority claims in accordance with paragraph (3).
(5) Where a person who has claimed the right of priority in accordance
with paragraph (3) fails to submit the document prescribed under
paragraph (4) within the prescribed time limit, the claim to the
right of priority shall lose its effect.
Article
55 ーPriority Claim Based on Patent Application, etc.―
(1) A person desiring to obtain a patent may claim the right of
priority for an invention claimed in a patent application which
has been disclosed in the description or drawings originally attached
to a patent or utility model application, for which he has the
right to obtain a patent or utility model registration, and which
has been filed earlier (hereinafter referred to as an "earlier
application") except in any of the following cases:
(ァ) where the patent application concerned is filed more than
one year from the filing date of the earlier application;
(ア) where the earlier application is a divisional application
under Article 52(2) or a dual application under Article 53 of
this Law or a divisional application under Article 16(2) of the
Utility Model Law or a dual application under Article 17 of the
Utility Model Law;
(ィ) where the earlier application has been abandoned, invalidated
or withdrawn at the time the patent application is filed;
(イ) where an examiner's decision, or a trial decision on the earlier
application has become final and conclusive; or
(ゥ) where the earlier application is registered under Article
35(2) of the Utility Model Law at the time when said patent application
is made.
(2) A person intending to claim the right of priority under paragraph
(1) shall, simultaneously with the patent application, make such
a claim and identify the earlier application in the patent application.
(3) For inventions which are amongst those described in a patent
application containing a priority claim under paragraph (1), which
are disclosed in the specification or drawings originally attached
to the earlier application which would be the basis for claiming
a priority right, [excluding those inventions disclosed in the
specification or drawings submitted at the time of the filing
of an application whose priority is claimed for an earlier application
in the case where that earlier application contains a priority
claim under paragraph (1) of this Article or under Article 4D(1)
of the Paris Convention for the Protection of Industrial Property]
the patent application shall be considered to have been filed
at the time when the earlier application was filed for the purpose
of Articles 29(1) or (2), and 29(3) (principal sentence), 30(1),
36(1) to (3), 96(1)(iii), 98, 103, 105(1) and (2), 129 and 136(3)
of the Patent Law, Articles 8(3), (4) and 39 of the Utility Model
Law, or Articles 45 and 52(3) of the Design Law.
(4) For inventions which are amongst those described in the specification
of drawings originally attached to a patent application containing
a priority claim under paragraph (1), which are disclosed in the
specification or drawings originally attached to the earlier application
which would be the basis for claiming a priority right, [excluding
those inventions disclosed in the specification or drawings submitted
at the time of the filing of an application whose priority is
claimed for an earlier application in the case where that earlier
application contains a priority claim under paragraph (1) of this
Article or under Article 4D(1) of the Paris Convention for the
Protection of Industrial Property] the laying open of the earlier
application for public inspection shall be considered to have
been effected at the time when the publication after registration
of a patent right or the laying open of the patent application
for public inspection was effected, for the purposes of the principal
sentence of Article 29(3) of the Patent Law and the principal
sentence of Article 5(3) of the Utility Model Law. In this case,
where the earlier application is an international application
which is deemed to be a patent application under Article 199(1)
of this Law or which is deemed to be a utility model registration
application under Article 57(1) of the Utility Model Law (including
an international application considered to be a patent application
or a utility model application under Article 214(4) of the Patent
Law or Article 71(4) of the Utility Model Law), "an invention
or device described both in the specification, claim or drawings
of the international application as of the international filing
date and in the translated version thereof" in Article 29(4) of
the Patent Law shall read "an invention or device described in
the specification, claim or drawings of the international application
as of the international filing date."
Article
56 ーWithdrawal of Earlier Application, etc.―
(1) The earlier application whose priority is claimed under Article
55(1) shall be deemed withdrawn at the expiration of one year
and three months from the filing date of that earlier application.
However, this provision shall not apply where that earlier application
falls under any of the following subparagraphs:
(ァ) in the case of its being abandoned, invalidated, or withdrawn;
(ア) in the case where an examiner's decision, or a trial or trial
decision, rejecting the application has become final and conclusive;
(ィ) in the case where priority claims based on the earlier application
concerned have been withdrawn; or
(イ) in a case of it being registered under Article 35(2) of the
Utility Model Law.
(2) The applicant of a patent application containing a priority
claim under Article 55(1) may not withdraw the priority claim
after the expiration of one year and three months from the filing
date of the earlier application.
(3) Where the patent application containing a priority claim under
Article 55(1) is withdrawn within one year and three months from
the filing date of the earlier application, the priority claim
shall be deemed withdrawn simultaneously therewith.
|
