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CHAPTER VII : Trial
Article 132bisーIndustrial Property Tribunal―
(1) The Industrial Property Tribunal shall be established under
the jurisdiction of the Commissioner of the Korean Industrial
Property Office to be responsible for trials and retrials regarding
patents, utility models, designs and trademarks and investigation
and research thereof.
(2) The Industrial Property Tribunal shall be composed of the
President and trial examiners.
(3) Matters necessary for the organization, personnel and operation
of the Industrial Property Tribunal shall be determined by Presidential
Decree.
Article 132ter ーTrial Against Ruling of Refusal or Revocation―
Where a person has received a ruling of refusal or revocation
by an examiner, such person may request a trial within thirty
days from the date of receipt of the certified copy of the ruling.
Article 132quater ーTrial Against Decision to Reject Amendment―
Where a person who receives a decision of rejection of amendment
under Article 51(1) is dissatisfied therewith, he may request
a trial within thirty days from the date of receipt of the certified
copy of the decision.
Article 133 ーInvalidation Trial of Patent―
(1) In the following cases, an interested party or an examiner
may request a trial to invalidate a patent and for patent containing
two or more claims, a request for an invalidation trial may be
made for each claim:
(ァ) where a patent has been granted contrary to Articles 25, 29,
31 to 33, 36(1) to (3), 42(3) and (4), or 44;
(ア) where a patent has been granted to a person who is not entitled
to obtain the patent;
(ィ) where a patent has been granted in violation of a treaty;
(イ) where, after the grant of a patent, the patentee is no longer
capable of enjoying the patent right under Article 25, or the
patent no longer complies with a treaty; or
(ゥ) where a patent violates the provisions of the proviso of Article
87(2).
(2) A trial under paragraph (1) of this Article may be requested
even after the extinguishment of a patent right.
(3) Where a trial decision invalidating a patent has become final
and conclusive, the patent right shall be deemed never to have
existed; however, where a patent falls under paragraph (1)(iv)
of this Article and a trial decision invalidating the patent has
become final and conclusive, the patent right shall be deemed
not to have existed at the time when the patent first became subject
to the said paragraph.
(4) Where a trial under paragraph (1) of this Article has been
requested, the presiding trial examiner shall notify the contents
of the request to the exclusive licensee of the patent right and
any other persons having registered rights relating to such patent.
Article 134 ーInvalidation Trial of Registration for Extension of Term of Patent Right―
(1) In the following cases, any interested party or examiner may
request a trial to invalidate the registration of an extension
of the term of a patent right:
(ァ) where an extension had been registered with respect to the
application which did not require any authorization, etc., under
the provisions of Article 89 for the purpose of working the patented
invention;
(ア) where the authorization under the provisions of Article 89
was not obtained by the patentee or an exclusive licensee thereof
or a registered non-exclusive licensee;
(ィ) where the term extended by the registration of an extension
exceeds the period of time during which the patented invention
could not be worked;
(イ) where the registration of an extension has been effected on
an application made by a person other than the patentee;
(ゥ) where the registration of an extension has been effected on
an application made in violation of Article 90(3); or
(ウ) deleted.
(2) The provisions of Article 133(2) and (4) shall apply mutatis
mutandis to a request for a trial under paragraph (1) of this
Article.
(3) Where a trial decision that the registration of extension
is to be invalidated has become final and conclusive, the registration
of extension of the term shall be deemed to have never existed;
however, where the registration of extension falls under Article
91(1)(iii), the extension of the term exceeding the period during
which the patented invention could not be worked shall be deemed
not to be effective as from the time when the trial decision conclusively
invalidating the registration of an extension of term becomes
final.
Article 135 ーTrial to Confirm the Scope of a Patent Right―
(1) A patentee or an interested person may request a trial to
confirm the scope of a patent right.
(2) Where a trial is requested to confirm the scope of a patent
right under paragraph(1), the confirmation shall apply to each
claim if the patent contains two or more claims.
Article 136 ーTrial for Correction―
(1) A patentee may request a trial for corrections to specifications
or drawing for only the following reasons:
(ァ) to narrow a claim;
(ア) to correct a clerical error; or
(ィ) to clarify an ambiguous description.
However, this provision shall not apply where an opposition to
the patent is pending.
(2) In cases under paragraph (1), the claim shall neither be extended
nor modified.
(3) In cases under paragraph (1)(i), the matters which are described
in the claim after correction shall be regarded as having been
patentable at the time of filing the patent application.
(4) Where a request for a trial for correction does not comply
with any of the subparagraphs of paragraph (1) or under paragraph
(2) and (3), the trial examiner shall notify the petitioner giving
the reasons for refusal of the request and give the petitioner
an opportunity to submit a response within a designated time limit.
(5) If a request for a for trial correction falls under any of
the subparagraphs of paragraph (1), and complies with the provisions
of paragraph (2) and (3), the trial examiner shall make a decision
for the publication of the request.
(6) The provisions of Articles 69(1) (main sentence), 70, 72,
73, 74(1), (2) and (6), 75, and 87(3), (5) and (6) shall apply
mutatis mutandis to the correction trial. In their application,
the term "three months" in Article 69 and 87(5) shall read "two
months", and the term "decision of rejection and decision of maintenance
on an opposition" in Article 74(6) shall read "decision on an
opposition."
(7) A trial for correction under paragraph (1) may be requested
even after the patent right has been extinguished, except in cases
where the patent has been revocated or invalidated by a trial
decision.
(8) A patentee shall not request a trial for correction under
paragraph (1) without the consent of an exclusive licensee, a
pledgee or a nonexclusive licensee under Article 39(1), 100(4)
or 102(1).
(9) Where a trial decision that the specification or drawing of
a patented invention are to be corrected become final and conclusive,
the patent application, the laying-open of the decision and the
registration of the establishment of the patent right shall be
deemed to have been made on the basis of such corrected specification
or drawing.
Article 137 ーTrial for Invalidation of Correction―
(1) An interested party or an examiner may request a trial for
an invalidation of a correction, where the specification or drawing
of a patented invention have been corrected in contravention to
Article 136(1) to (3).
(2) The provisions of Article 133(2) and (4) shall apply mutatis
mutandis to a request for a trial under paragraph (1).
(3) Where a trial decision that a correction of the specification
or drawing is to be invalidated under paragraph (1) has become
final and conclusive, the correction shall be deemed never to
have been made.
Article 138 ーTrial for Granting Non-exclusive License―
(1) If a patentee, or exclusive or non-exclusive licensee, desires
to obtain permission to exercise the right provided for under
Article 98, and if the other party concerned refuses to grant
the permission without justifiable reasons or it is not possible
to obtain such permission, the said patentee or exclusive or non-exclusive
licensee may request a trial for the grant of a non-exclusive
license having the scope necessary to work the patented invention.
(2) Where the request under paragraph (1) has been made, a non-exclusive
license shall be granted only where the patented invention of
the later application constitutes a substantial technical advance
in comparison with the other party's patented invention or registered
utility model for which an application was filed prior to the
filing date of the later application.
(3) If a person who has granted a non-exclusive license under
paragraph (1) needs to work the patented invention of the person
who has been granted such non-exclusive license, and if the latter
refuses to give permission or if it is impossible to obtain such
permission, the former may request a trial for the grant of a
non-exclusive license having the scope that necessary to work
his patented invention.
(4) A non-exclusive licensee, who was granted a non-exclusive
license under paragraph (1) or (3) of this Article, shall pay
remuneration to the patentee, owner of the utility model right,
owner of the designright or exclusive licensee thereof, provided
that if payment is not possible for reasons beyond the control
of the said non-exclusive licensee, the remuneration shall be
deposited.
(5) A non-exclusive licensee under paragraph (4) shall not work
the patented invention, registered utility model or registered
design, or similar design with out payment of remuneration or
deposit thereof.
Article 139 ーRequest for Joint Trial, etc.―
(1) Where two or more persons request an invalidation trial under
Article 133(1), 134(1) or 137(1) or a trial to confirm the scope
of a patent right under Article 135(1), the request may be made
jointly.
(2) Where a trial is requested against any of the joint owners
of a patent right, all the joint owners shall be made defendants.
(3) Where joint owners of a patent right or of a right to obtain
a patent request a trial concerning the right under joint ownership,
the request shall be made jointly by all the joint owners.
(4) Where there are ground for the suspension of trial proceedings
which apply to one of the requesters under paragraph (1) or (3)
or one of the defendants under paragraph (2), the suspension shall
be effective against all of them.
Article 140 ーFormal Requirements of Request for Trial―
(1) A person who desires to request a trial shall submit a written
request to the President of the Industrial Property Tribunal,
stating the following:
(ァ) names and domiciles of the parties and the name of the agent
(in case of a legal entity, the title, place of business and the
name of its representative);
(ア) identification of the trial case; and
(ィ) purpose of the request and the grounds therefor.
However, for trials under Article 140bis, the provisions
of said Article shall apply.
(2) No amendment of a request for trial submitted under paragraph
(1) may change the intent or purpose thereof; however, this provision
shall not apply with respect to the basis for the request under
paragraph (1)(iii).
(3) When a trial is requested to confirm the scope of a patent
right under Article 135(1), the relevant specification and drawings
shall be attached to the written request.
(4) A written request for a trial under Article 138(1) shall,
in addition to the particulars referred to in paragraph (1), state:
(ァ) the number and title of his patent which is required to be
worked;
(ア) the number, title and date of the other party's patent, registered
utility model or registered design to be worked; and
(ィ) the scope, duration and remuneration for the non-exclusive
license for a patented invention, a registered utility model or
a design.
(5) When a trial for amendment under Article 136(1) is requested,
the amended specification or drawings shall be attached to the
written request for trial.
Article 140bisーFormal Requirements of Request for Trial on Ruling of Refusal, Revocation, or Decision of Rejection of Amendment―
(1) A person, who desires to request a trial against a ruling
of refusal, revocation, or a decision of rejection of amendment
under Article 132ter or 132quater, shall submit
a written request to the President of the Industrial Property
Tribunal, specifying:
(ァ) name and domicile of the petitioner and his agent (in the
case of a legal entity, the title, place of business and the name
of its representative);
(ア) filing date and file number of the application (in the case
of dissatisfaction with a decision of revocation, the registration
date and number of the patent);
(ィ) title of the invention;
(イ) date of the decision;
(ゥ) identification of the trial case; and
(ウ) purpose of the request and the grounds therefor.
(2) Where a request for a trial is made against a decision of
revocation under Article 132ter, the President of the Industrial
Property Tribunal shall notify the opponent regarding the purpose
of the request.
Article 141 ーRejection of Request for Trial―
(1) Where a request for a trial does not comply with Articles
140(1) and (3) to (5) or 140bis(1), the presiding trial
examiner shall order an amendment of the defect designating an
adequate time limit therefor. This provision shall also apply
where the prescribed fees have not been paid under Article 82.
(2) If the petitioner fails to amend the defect within the designated
time limit under paragraph (1), the presiding trial examiner shall
reject the request for trial by decision.
(3) A decision to reject a request for a trial under paragraph
(2) shall be in writing and shall state the reasons therefor.
Article 142 ーRejection of Request for Trial Containing Incurable Defects―
If a request for a trial contains unlawful defects which cannot
be corrected by amendment, such request may be rejected by a ruling
without giving the defendant an opportunity to submit a written
reply.
Article 143 ーTrial Examiners―
(1) When a trial is requested, the President of the Industrial
Property Tribunal shall direct the trial examiners to hear the
case.
(2) The qualifications of the trial examiners shall be prescribed
by Presidential Decree.
(3) Trial examiners shall conduct their official trial duties
for the trial in an independent manner.
Article 144ーDesignation of Trial Examiners―
(1) For each trial, the President of the Industrial Property Tribunal
shall designate trial examiners constituting a collegial body
under Article 146.
(2) When any trial examiner designated in accordance with paragraph
(1) is unable to participate in the trial, the President of the
Industrial Property Tribunal shall appoint another trial examiner
to take his place.
Article 145 ーPresiding Trial Examiner―
(1) The President of the Industrial Property Tribunal shall select
one of the trial examiners designated under Article 144 (1) as
the presiding trial examiner.
(2) The presiding trial examiner shall preside over all matters
relating to the trial.
Article 146 ーCollegial Body for Trial―
(1) A trial shall be conducted by a collegial body of three or
five trial examiners.
(2) The collegial body referred to in paragraph (1) shall make
its decisions by a majority vote.
(3) The consultations of the trial examiners shall not be open
to the public.
Article 147 ーSubmission of Response, etc.―
(1) When a trial has been requested, the presiding trial examiner
shall transmit a copy of the written request to the defendant
and shall give him an opportunity to submit a response within
a designated time limit.
(2) Upon receipt of the response under paragraph (1), the presiding
trial examiner shall transmit a copy of the response to the petitioner.
(3) The presiding trial examiner may directly examine the parties
in relation to the trial.
Article 148 ーExclusion of Trial Examiner―
A trial examiner shall be precluded from exercising his functions
in a trial where:
(ァ) the trial examiner or his present or former spouse is a party,
intervenor, or opponent;
(ア) the trial examiner is or was a blood relative or a member
of the household, of a party, intervenor, or opponent;
(ィ) the trial examiner is or was a legal representative of a party,
intervenor, or opponent;
(イ) the trial examiner has become a witness or expert witness
or was an expert witness;
(ゥ) the trial examiner is or was an agent of a party, intervenor,
or opponent;
(ウ) the trial examiner participated as an examiner or trial examiner
in an examination or a trial decision relating to the case; or
(ェ) the trial examiner has a direct interest.
Article 149 ーRequest for Exclusion―
Where there are ground for preclusion under Article 148, a party
or intervenor may request for the exclusion of a trial examiner.
Article 150 ーChallenge of Trial Examiner―
(1) Where there are circumstances wherein the participation of
a trial examiner would prejudice the fairness of the proceedings
in a trial, such trial examiner may be challenged by a party or
intervenor.
(2) After a party or intervenor has made a written or oral statement
with regard to the case before a trial examiner, he may not challenge
the trial examiner, except where the party or intervenor did not
know that there was a ground for challenge or where a ground for
challenge arose subsequently.
Article 151ーIndication of Grounds for Exclusion or Challenge―
(1) A person who presents a motion for exclusion or challenge
under Articles 149 or 150 shall submit a document to the President
of the Industrial Property Tribunal stating the grounds therefor.
However, in an oral trial examination, an oral challenge may be
made.
(2) The underlying causes for exclusion or challenge shall be
substantiated within three days from the date the motion was presented.
Article 152ーDecision on Request for Exclusion or Challenge―
(1) A decision on a request for exclusion or challenge shall be
made by a trial.
(2) The trial examiner subject to the exclusion or challenge motion
shall not participate in the trial of the request but may, however,
state his opinion.
(3) A decision made under paragraph (1) shall be in writing and
shall state the reasons therefor.
(4) No appeal shall be made against a decision made under paragraph
(1) of this Article.
Article 153ーSuspension of Proceedings―
When a motion for exclusion or challenge has been presented, the
trial proceedings shall be suspended until a decision thereon
has been made; however, this provision shall not apply to matters
requiring urgent attention.
Article 154 ーTrial Proceedings, etc.―
(1) The trial proceedings under Articles 133(1), 134(1) and 137(1)
shall be conducted by oral hearings; however, the presiding trial
examiner may, upon request of a party or intervenor or ex officio,
conduct the trial proceedings by documentary examination.
(2) Trial proceedings other than those under paragraph (1) shall
be conducted by documentary examination; however, the presiding
trial examiner may, upon request of a party or intervenor or ex
officio, conduct the trial proceedings through oral hearings.
(3) Oral hearings shall be conducted in public; however, this
provision shall not apply where public order or morality is liable
to be injured thereby.
(4) Where the trial proceedings are conducted by oral hearings
in accordance with the provisions of paragraph (1) or (2), the
presiding trial examiner shall designate the date and place thereof
and transmit a document containing such information to the parties
and intervenors; however, this provision shall not apply where
the parties or intervenors to case have already been notified.
(5) With respect to trial proceedings by oral hearings under the
provisions of paragraphs (1) or (2), an official, designated by
the President of the Industrial Property Tribunal shall, under
the direction of the presiding trial examiner, prepare a protocol
setting forth the essence of the proceedings and other necessary
matters in time for the date of each trial proceeding.
(6) The presiding trial examiner and the official who has prepared
the protocol under paragraph (5) shall sign the protocol and affix
their seals thereto.
(7) The provisions of Articles 142, 143 and 145 to 149 of the
Code of Civil Procedure shall apply mutatis mutandis to
the protocol under paragraph (5).
(8) The provisions of Articles 133, 271 and 339 of the Code of
Civil Procedure shall apply mutatis mutandis to a trial.
Article 155 ーIntervention―
(1) Any person having the right to request a trial under Article
139(1) may intervene in the trial before the conclusion of the
trial examination.
(2) An intervenor under paragraph (1) may continue a trial even
after the request for the trial has been withdrawn by the original
party.
(3) Any person having an interest in the result of a trial may
intervene in the trial, before the conclusion of the trial examination
in order to assist one of the parties.
(4) An intervenor under paragraph (3) may initiate and take part
in any procedure relating to the trial.
(5) Where there are grounds for suspension of a trial proceeding
applicable to the intervenor under paragraphs (1) or (3), the
suspension shall also be effective against the original party.
Article 156 ーRequest for Intervention and Decision―
(1) A person desiring to intervene in a trial shall submit, in
writing, a request for intervention to the presiding trial examiner.
(2) The presiding trial examiner shall transmit copies of the
request for intervention to the parties and other intervenors
and give them an opportunity to submit written opinions within
a designated time limit.
(3) Where a request for intervention is made, the decision thereon
shall be made by a trial.
(4) The decision under paragraph (3) shall be in writing and shall
state the reasons therefor.
(5) No appeal shall be made against the decision under paragraph
(3).
Article 157 ーTaking of Evidence and Preservation Thereof―
(1) With respect to a trial, evidence may be taken or preserved
upon request of a party, intervenor, interested person or ex
officio.
(2) The provisions of the Code of Civil Procedure relating to
the taking and preservation of evidence shall apply mutatis
mutandis to any taking and preservation thereof under paragraph
(1). However, the trial examiner may not impose a fine for negligence,
order compulsory appearance, or require the deposit of money as
security.
(3) A request to preserve evidence shall be made to the President
of the Industrial Property Tribunal prior to a request for trial
and to the presiding trial examiner of the case while the trial
is pending.
(4) Where a motion for preservation of evidence has been made
under paragraph (1) prior to a request for trial, the President
of the Industrial Property Tribunal shall designate a trial examiner
to be responsible for the preservation of evidence.
(5) Where evidence has been taken or preserved ex officio
under paragraph (1), the presiding trial examiner shall notify
the parties, intervenors, and interested persons thereof and shall
give them an opportunity to submit written opinions within a designated
time limit.
Article 158 ーContinuation of Trial Proceedings―
Notwithstanding the failure of a party or intervenor to take any
proceedings within the time limit prescribed by law, or designated
in accordance with the Patent Law, or failure to appear on the
designated date in accordance with Article 154(4), the presiding
trial examiner may proceed with the trial proceedings.
Article 159 ーEx Officio Trial Examination―
(1) Grounds which have not been pleaded by a party or intervenor
in a trial may be examined; however, in such cases, the parties
or intervenors shall be given an opportunity to state their opinions
regarding such grounds, within a designated time limit.
(2) In a trial, no examination may be made on the purpose of a
claim not requested by the petitioner.
Article 160ーCombination or Separation of Trial or Ruling―
The trial examiner may combine the examination of two or more
trial proceedings where one or both of the parties thereto are
the same, or, may examine them separately.
Article 161ーWithdrawal of Request for Trial―
(1) A request for trial may be withdrawn by the petitioner before
the trial decision has become final and conclusive; however, the
consent of the defendant for the withdrawal shall be obtained
where a response has already been submitted.
(2) When a request for a trial for invalidating a patent under
Article 133(1) or for confirming the scope of a patent right under
Article 135 has been made with regard to two or more claims, the
request may be withdrawn for each of the claims.
(3) When a request for a trial is withdrawn under paragraph (1),
it shall be deemed never to have been made.
Article 162ーRuling on Trial―
(1) Except as otherwise provided for, when a trial ruling has
been rendered, the trial shall be closed.
(2) The trial ruling under paragraph (1) shall be in writing,
signed and sealed by the trial examiners who have rendered it,
and shall state the following:
(ァ) the number of the trial;
(ア) the name and domicile of the parties, intervenors and agents
(in the case of a legal entity, the title, the place of business
and the name of its representative);
(ィ) the identification of the trial case;
(イ) the text of the ruling (including the scope, duration and
remuneration in trial cases under Article 138);
(ゥ) the reasons for the decision (including the purpose and a
summary of the reason for the request); and
(ウ) the date of the ruling.
(3) When a case has been thoroughly examined and is ready to be
ruled, the presiding trial examiner shall notify the closure of
the trial examination to the parties and intervenors.
(4) Even after notification of the closure of the trial examination
under paragraph (3), the presiding trial examiner may, if necessary,
reopen the examination upon the motion of a party or an intervenor
or ex officio.
(5) The decision shall be rendered within twenty days following
the date on which notification of the closure of the trial examination
is served under paragraph (3).
(6) When a trial decision or a ruling has been rendered, the presiding
trial examiner shall transmit a certified copy of the trial decision
or the ruling to the parties, intervenors, and persons who have
requested intervention to the trial, but have been rejected.
Article 163ーRes Judicata―
When a trial decision or ruling has become final and conclusive
and has been registered pursuant to the Patent Law, no person
may demand another trial on the basis of the same facts and evidence.
Article 164ーSuspension of Trial or Litigation Proceedings―
(1) Proceedings of a trial may, if necessary, be suspended until
the decision on a patent opposition relevant to the trial or the
trial decision of another trial becomes final and conclusive or
litigation proceedings thereon are concluded.
(2) The court may, if considered necessary in the litigation proceedings,
suspend the litigation proceedings until a trial decision on the
patent becomes final and conclusive.
Article 165ーCosts of Trial―
(1) The imposition of costs in connection with a trial under Articles
133(1), 134(1), 135 and 137(1) shall be decided by a trial decision
in the event the trial is terminated by a trial decision, or by
a decision in the trial where the trial is terminated in a manner
other than by a trial decision.
(2) The provisions of Articles 89 to 94, 98(1) and (2), 99, 101,
102 and 106 of the Code of Civil Procedure shall apply mutatis
mutandis to the costs in connection with the trial under paragraph
(1).
(3) The costs in connection with the trial under Article 132ter,
132quater, 136 or 138 shall be borne by the petitioner
or the opponent.
(4) The provisions of Article 93 of the Code of Civil Procedure
shall apply mutatis mutandis to the costs borne by the
requester or the opponent under paragraph (3).
(5) The amount of the costs in connection with a trial shall be
decided by the President of the Industrial Property Tribunal,
upon request, after the trial decision or the ruling has become
final and conclusive.
(6) The extent, amount and payment of the costs of a trial, as
well as the payment of the costs for performing any procedural
acts in the trial, shall be governed by the relevant provisions
of the Law of Civil Procedure Costs unless they are incompatible.
(7) The payment which a party has paid or will pay to a patent
attorney who representing the party in the trial shall be deemed
an element of the costs in connection with a trial to determine
the extent of the costs by the Commissioner of the Korean Industrial
Property Office. In this regard, even if two or more patent attorneys
have represented a person for the trial, it shall be deemed to
have been represented by one patent attorney.
Article 166ーTitle of Liability of Costs, Remuneration or Compensation―
A final and conclusive ruling on the amount of the costs of a
trial, compensation or remuneration payable under the Patent Law
shall have the same effect as an enforceable title of liability;
the legal writ, which has the force of execution, shall be given
by an official of the Industrial Property Tribunal.
Article 167 Deleted.
Article 168 Deleted.
Article 169 Deleted.
Article 170 ーMutatis Mutandis Application of Provisions on Examination to Trial against Ruling of Refusal―
(1) The provisions of Articles 47(2)(iii), 51, 63 and 66 shall
apply mutatis mutandis to a trial against a ruling of refusal
by an examiner. In this case, the term "where an applicant has
requested a trial under Article 132quater against a decision
to reject an amendment" shall read "where an applicant has brought
an action before the court under Article 186(1), and "until the
trial decision has become final and conclusive" shall read "until
the judgement has become final and conclusive."
(2) Articles 51(1) and (5), and 63 which are applicable mutatis
mutandis under paragraph (1) shall apply in the cases where
grounds for rejection different from those of the examiner's original
ruling of refusal have been found.
Article 171ーSpecial Provisions on Trial against Ruling of Refusal or Decision of Rejection of Amendment―
(1) In the case of a trial against a ruling of refusal by an examiner
under Article 173, the selection of the trial examiners of the
trial case shall be made only when notification has been made
under Article 175(2).
(2) Articles 147(1) and (2), 155 and 156 shall not be applicable
to a trial against a ruling of refusal or revocation by an examiner
under Article 132ter and to a trial against a decision
of rejection of an amendment under Article 132quater.
Article 172ーEffect of Examination or Opposition Proceedings―
Proceedings previously taken during the course of an examination
or an opposition shall also remain effective in a trial against
a ruling of refusal or revocation by an examiner.
Article 173ーReexamination Prior to Trial―
(1) Where an amendment of the specification or drawings attached
to the application which is the subject of the request has been
made within thirty days after a request for a trial against a
ruling of refusal under Article 132ter, the President of
Industrial Property Tribunal shall notify the Commissioner of
the Korean Industrial Property Office before proceeding with the
trial.
(2) Where a notification referred to in paragraph (1) has been
made, the Commissioner of the Korean Industrial Property Office
shall have the examiner reexamine the application.
Article 174ーMutatis Mutandis Application of Provision on Examination to the Reexamination Prior to Trial―
(1) The provisions of Articles 51, 57(2), 78 and 148(i) to (v)
and (vii) shall apply mutatis mutandis to the reexamination
under Article 173.
(2) The provisions of Articles 47(2)(iii) and 63 shall apply mutatis
mutandis to the reexamination under Article 173 if grounds
for rejection different from those of the examiner's original
ruling of refusal are found.
(3) The provisions of Articles 66 and 67 shall apply mutatis
mutandis to the reexamination under Article 173 if the request
for trial is deemed to have merit.
Article 175ーTermination of Reexamination―
(1) If the examiner desires to make a decision to grant a patent
as a result of reexamination under Article 173, he shall cancel
his previous ruling of refusal against which a trial was requested.
(2) If the examiner cannot make a decision to grant a patent as
a result of reexamination under Article 173, he shall report the
result of his reexamination to the Commissioner of the Korean
Industrial Property Office without making a ruling of refusal
under Article 62. The Commissioner of the Korean Industrial Property
Office shall notify the President of the Industrial Property Tribunal
after receipt of the report.
Article 176ーReversal of Decision and Remand―
(1) Where the trial examiners have deemed that the request for
a trial under Articles 132ter or 132quater were
well-grounded, they shall reverse the examiner's ruling of refusal,
revocation or rejection of a amendment.
(2) Where a ruling of refusal or revocation of a patent is reversed
in a trial, a trial decision may be made to remand the case to
the Examination Bureau.
(3) In ruling on a trial under paragraphs (1) and (2) of this
Article, the reasons constituting the basis for the reversal shall
bind the examiner with respect to the case.
Article 177 Deleted.
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