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Patent Act (
07/01/2001
: Revised Patent Law )
CHAPTER I GENERAL PROVISIONS
Article 1 ーPurpose―
The purpose of this Act shall be to encourage,
protect and utilize inventions, thereby improving
and developing technology, and to contribute
to the development of industry.
Article 2 ーDefinitions―
The definitions of terms used in this Law
shall be as follows:
(i) "invention" means the highly
advanced creation of technical ideas utilizing
rules of nature;
(ii) "patented invention" means
an invention for which a patent has been granted;
and
(iii) "working" means any one of
the following acts:
(a) in the case of an invention of a product,
acts of manufacturing, using, assigning, leasing,
importing, or offering for assigning or leasing
(including displaying for the purpose of assignment
or lease) the product;
(b) in the case of an invention of a process,
acts of using the process; and
(c) in the case of an invention of a process
of manufacturing a product, acts of using, assigning,
leasing, importing, or offering for assigning
or leasing the product manufactured by the process,
in addition to the acts mentioned in subparagraph
(b).
Article 3 ーCapacity
of Minors, etc.―
(1) Minors, limited competents and incompetents
shall not initiate the procedure for filing
an application, requesting an examination, or
any other patent-related procedure (hereinafter
referred to as "patent-related procedure")
unless represented by their legal representatives.
However, this provision shall not apply where
a minor or a limited competent can perform a
legal act independently.
(2) The legal representative as referred
to in paragraph (1) may, without the consent
of the family council, act in any patent-related
opposition, trial, or retrial procedures initiated
by another party.
(3) Patent-related procedures, initiated
by a person who lacks the requisite power of
legal representation or competence or delegation
necessary to initiate any such procedures, shall
have retroactive effect if said procedures are
ratified by a person having such power of representation
or competence.
Article 4 ーAssociations,
etc., Other than a Legal Entity―
A representative or an administrator, who
has been so designated by an association or
a foundation which is not a legal entity, may
make a request for examination of a patent application,
file an opposition to the grant of a patent,
or appear as a plaintiff or defendant in a trial
or a retrial in its association or foundation
name.
Article 5 ーPatent
Administrator for Nonresidents―
(1) A person who has neither an address nor
a place of business in the Republic of Korea
(hereinafter referred to as a "nonresident")
may not, except in cases where a nonresident
(or a representative thereof if a legal entity)
is sojourning in the Republic of Korea, initiate
any patent-related procedure, nor appeal any
decision taken by an administrative agency in
accordance with this Law or any decree thereunder,
unless he is represented by an agent with respect
to his patent, who has an address or a place
of business in the Republic of Korea (hereinafter
referred to as a "patent administrator").
(2) The patent administrator shall, within
the scope of powers conferred on him, represent
the principal in all procedures relating to
a patent and in any appeal against a decision
taken by an administrative agency in accordance
with this Law or any decree thereunder.
(3) Deleted.
(4) Deleted.
Article 6 ーScope of
Powers of Attorney―
An agent who is instructed to initiate a
patent-related procedure before the Korean Intellectual
Property Office by a person who is domiciled
or has his place of business in the Republic
of Korea shall not, unless expressly so empowered,
abandon or withdraw an application for a patent,
withdraw an application for registration of
an extension of the term of a patent right,
abandon a patent right, withdraw a petition,
withdraw a request for a motion, make or withdraw
a priority claim under Article 55(1), request
for a trial under Article 132ter, or appoint
a sub-representative.
Article 7 ーProof of
Powers of Attorney―
An agent (including a patent administrator,
the same being applicable hereafter) of a person
who is initiating a patent-related procedure
before the Korean Intellectual Property Office
shall present written proof of his power of
attorney.
Article 8 ーNon-extinguishment
of Powers of Attorney―
A power of attorney of an agent of a person
initiating a patent-related procedure shall
not be extinguished upon the death or loss of
legal capacity of the principal, the extinguishment
of a legal entity of the principal due to a
merger, the termination of the duty of trust
of the principal, the death or loss of legal
capacity of the legal representative, or the
modification or extinguishment of his power
of attorney.
Article 9 ーIndependence
of Representation―
Where two or more agents of a person initiating
a patent-related procedure have been designated,
each of them shall independently represent the
principal before the Korean Intellectual Property
Office or the Intellectual Property Tribunal.
Article 10 ーReplacement
of Agents, etc.―
(1) If the Commissioner of the Korean Intellectual
Property Office or the presiding trial examiner
considers that a person initiating a patent-related
procedure is not qualified to conduct such a
procedure or make oral statements, etc. he may
order, ex officio, the appointment of an agent
to conduct the procedure.
(2) If the Commissioner of the Korean Intellectual
Property Office or the presiding trial examiner
considers that the agent of a person initiating
a patent-related procedure is not qualified
to conduct such a procedure or make oral statements,
etc. he may order, ex officio, the replacement
of the agent.
(3) The Commissioner of the Korean Intellectual
Property Office or the presiding trial examiner
may, in the case referred to in paragraph (1)
or (2) of this Article, order the appointment
of a patent attorney to conduct the procedure.
(4) The Commissioner of the Korean Intellectual
Property Office or the presiding trial examiner
may invalidate any action taken before the Korean
Intellectual Property Office or the Industrial
Property Tribunal by the person initiating the
patent-related procedure referred to in paragraph
(1) of this Article or by the agent referred
to in paragraph (2), of this Article prior to
the appointment or the replacement of the agent,
referred to under paragraph (1) or (2), respectively,
after the issuance of an order referred to under
paragraph (1) or (2).
Article 11 ーRepresentation
of Two or More Persons―
(1) Where two or more persons jointly initiate
a patent-related procedure, each of them shall
represent the joint initiators except for actions
falling under any of the following subparagraphs;
however, this provision shall not apply where
those persons have appointed a common representative
and have notified the appointment of the representative
to the Korean Intellectual Property Office or
the Industrial Property Tribunal:
(i) abandonment or withdrawal of a patent
application or withdrawal of an application
for registration of an extension of term of
a patent right;
(ii) withdrawal of a petition; claim or withdrawal
of a priority claim under Article 55(1);
(iii) withdrawal of a request; and
(iv) request for a trial under Article 132ter.
(2) Where the common representative has been
appointed and notified under the provision of
paragraph (1), a written proof of the fact that
the representative has been appointed shall
be presented.
Article 12 ーMutatis
Mutandis Application of Provisions of the Code
of Civil Procedure―
Except where there is an express provision
relating to agents in the Patent Law, the provisions
of Part I, Section 2, Subsection 4 of the Code
of Civil Procedure shall apply mutatis mutandis
to agents under this Law.
Article 13 ーVenue
of Nonresidents―
If a nonresident has appointed a patent administrator
with respect to his patent right or other right
relating to a patent, the domicile or place
of business of the patent administrator shall
be considered to be that of the nonresident.
Where there is no such patent administrator,
the location of the Korean Intellectual Property
Office shall be regarded as the seat of the
property under Article 9 of the Code of Civil
Procedure.
Article 14 ーCalculation
of Time Limits―
The time limits provided for in the Patent
Law, or any decrees thereunder shall be calculated
as follows:
(i) the first day of the period shall not
be counted unless the period starts at midnight;
(ii) if the period is expressed in months
or years, it shall be counted according to the
calendar;
(iii) if the start of the period does not
coincide with the beginning of a month or year,
the period shall expire on the day preceding
the date in the last month or year of the period
corresponding to the date on which the period
started; however, if there is no corresponding
day in the last month, the period shall expire
on the last day of that month; and
(iv) if the last day of a period for executing
a patent-related procedure falls on an official
holiday, including Labor Day, designated by
the Labor Day Designation Law, said period shall
expire on the working day following such holiday.
Article 15 ーExtension
of Time Limits, etc.―
(1) The Commissioner of the Korean Intellectual
Property Office or the President of the Industrial
Property Tribunal may extend, for the benefit
of a person residing in an area that is remote
or difficult to access, the period for submitting
an amendment of grounds for opposition according
to Article 70(1) or the period for demanding
a trial under Article 132ter upon a request
or ex officio.
(2) When the Commissioner of the Korean Intellectual
Property Office, the President of the Industrial
Property Tribunal, a presiding trial examiner
or an examiner has designated a time limit for
a patent-related procedure to be initiated under
the Patent Law, extend it upon a request or
ex officio.
(3) When a presiding trial examiner or an
examiner has designated a date for initiating
a patent-related procedure under the Patent
Law, he may change the date upon a request or
ex officio.
Article 16 ーInvalidation
of Procedure―
(1) When a person who has been notified to
make an amendment in accordance with Article
46 fails to do so within the designated time
limit, the Commissioner of the Korean Intellectual
Property Office or the President of the Industrial
Property Tribunal may invalidate the procedure
relating to the patent. However, where a person
who has been notified to make an amendment for
not paying the fees for a request for examination
under Article 82(2) fails to pay said fees for
the request for examination, the Commissioner
of the Korean Intellectual Property Office or
the President of the Intellectual Property Tribunal
may invalidate the amendment to the specification
attached to the patent application.
(2) When a patent-related procedure has been
invalidated under paragraph (1), if the delay
of the time is deemed to have been caused by
reasons not imputable to a person who received
an invitation to amend, the Commissioner of
the Korean Intellectual Property Office or the
President of the Intellectual property Tribunal
may revoke a disposition of invalidation at
the request of a person who received an invitation
to amend within fourteen days from the date
on which the reasons for the delay ceased to
exist. However, this provision shall not apply
where one year has elapsed after the designated
period expires.
Article 17 ーSubsequent
Completion of Procedure―
If a person who initiated a patent-related
procedure has failed to observe the time limit
for requesting a trial under Article 132ter,
or the time limit for demanding a retrial under
Article 180(1) due to a cause not imputable
to himself, he may subsequently complete the
procedure that he failed to conduct within fourteen
days after said reason ceases to exist. However,
this provision shall not apply in a case where
one year has elapsed after said period expires.
Article 18 ーSuccession
of Procedural Effects―
The effects of a procedure taken in relation
to a patent or other right relating to a patent
shall extend to the successor in title.
Article 19 ーContinuation
of Procedure by Successor―
Where a patent right or other right relating
to a patent is transferred while a procedure
relating to the patent is pending before the
Korean Intellectual Property Office or the Intellectual
Property Tribunal, the Commissioner of the Korean
Intellectual Property Office or the presiding
trial examiner may require the successor in
title to continue the procedure relating to
the patent.
Article 20 ーInterruption
of Procedure―
If any patent-related procedure pending before
the Korean Intellectual Property Office or the
Intellectual Property Tribunal falls under any
of the following subparagraphs, it shall be
interrupted, unless there is a representative
authorized to conduct the procedure:
(i) when the party involved has died;
(ii) when the legal entity involved has ceased
to exist by reason of merger;
(iii) when the party involved has lost the
ability to conduct the procedure;
(iv) when the legal representative of the
party involved has died or lost his power;
(v) when the commission of a trustee given
by the trust of the party involved has terminated;
or
(vi) where the representative as provided
in the provisions of Article 11(1) has died
or lost his qualification.
Article 21 ーResumption
of an Interrupted Procedure―
When a procedure pending in the Korean Intellectual
Property Office or the Intellectual Property
Tribunal has been interrupted in the manner
referred to in Article 20, any person who falls
under any of the following subparagraphs shall
resume the procedure:
(i) in the case as provided for under Article
20(i), the deceased person's successor, administrator
of inheritance, or other person authorized to
pursue the procedure under the Law; however,
the deceased person's successor may not resume
the procedure until such time as his right to
succession is no longer subject to renunciation;
(ii) in the case as provided for under Article
20(ii), the legal entity established by or existing
after the merger;
(iii) in the cases as provided for under
Article 20(iii) and (iv), the party whose ability
to take the necessary procedure has been restored
or any person who becomes the legal representative
of the party, respectively;
(iv) in the case as provided for under Article
20(v), a new trustee; and
(v) in the case as provided for under Article
20(vi), a new representative or each joint initiator
involved.
Article 22 ーRequest
for Continuation―
(1) The request for continuation of an interrupted
procedure under Article 20 may be made by an
opposing party.
(2) When a request for continuation of an
interrupted procedure interrupted under Article
20 is made, the Commissioner of the Korean Intellectual
Property Office or the presiding trial examiner
shall notify the opposite party.
(3) The Commissioner of the Korean Intellectual
Property Office or the trial examiner shall,
if it has been deemed that there are no grounds
for granting the request for continuation of
the interrupted procedure under Article 20,
dismiss the request by decision after examining
the request, ex officio.
(4) The Commissioner of the Korean Intellectual
Property Office or the trial examiner shall
decide, upon request for continuation, whether
to permit resumption of the interrupted procedure
after a certified copy of the decision or trial
decision was sent.
(5) If a person referred to in Article 21
does not take over the interrupted procedure,
the Commissioner of the Korean Intellectual
Property Office or the trial examiner shall,
ex officio, designate a period within which
he shall resume such procedure.
(6) If no request for continuation has been
made within the designated period provided in
paragraph (5), it is considered that the continuation
has been made on the day following the expiration
of such designated period.
(7) If the Commissioner of the Korean Intellectual
Property Office or the presiding trial examiner
deems that the continuation made in accordance
with paragraph (6), he shall so notify the parties
involved.
Article 23 ーSuspension
of Procedure―
(1) If the Commissioner of the Korean Intellectual
Property Office or the trial examiner is unable
to carry out his duties due to a natural disaster
or other unavoidable circumstances, the procedure
pending in the Korean Intellectual Property
Office or the Intellectual Property Tribunal
shall be suspended until such impediments cease
to exist.
(2) If a party involved is unable to pursue
a procedure pending in the Korean Intellectual
Property Office or the Intellectual Property
Tribunal on account of impediments of indefinite
duration, the Commissioner of the Korean Intellectual
Property Office or the trial examiner may order
its suspension by decision.
(3) The Commissioner of the Korean Intellectual
Property Office or the trial examiner may cancel
the decision issued under paragraph (2).
(4) If a procedure is0 suspended under paragraphs
(1) or (2), or a decision is canceled under
paragraph (3), the Commissioner of the Korean
Intellectual Property Office or the presiding
trial examiner shall so notify the parties involved.
Article 24 ーEffects
of Interruption or Suspension―
The interruption or suspension of a patent-related
procedure pending in the Korean Intellectual
Property Office shall suspend the running of
a term and the entire term shall start to run
again from the time of the notification of the
continuation or resumption of the procedure.
Article 25 ーCapacity
of Foreigners―
Foreigners who have neither an address nor
a place of business in the Republic of Korea
shall not enjoy patent rights or other rights
relating to a patent, except as provided for
in any one of the following subparagraphs:
(i) where their country allows nationals
of the Republic of Korea to enjoy patent rights
or other rights relating to a patent under the
same conditions as its own nationals;
(ii) where their country allows nationals
of the Republic of Korea to enjoy patent rights
or other rights relating to a patent under the
same conditions as its own nationals in the
case that the Republic of Korea allows their
country's nationals to enjoy patent rights or
other rights relating to a patent; or
(iii) where they may enjoy patent rights
or other rights relating to a patent according
to a treaty or equivalents of a treaty (hereinafter
referred to as "treaty").
Article 26 ーEffects
of Treaty―
Where a treaty contains special provisions
relating to patents that are different from
those of the Patent Law, such special provisions
shall prevail.
Article 27 Deleted.
Article 28 ーEffective
Date of Submitted Documents―
(1) Applications, demands or other documents
(including articles, the same applying hereafter
in this provision) submitted to the Korean Intellectual
Property Office or the Intellectual Property
Tribunal under the provisions of the Patent
Law, or any decree thereunder, shall be effective
as of the date on which they are delivered to
the Korean Intellectual Property Office or the
Intellectual Property Tribunal.
(2) Where applications, demands or other
documents are submitted by mail to the Korean
Intellectual Property Office or the Intellectual
Property Tribunal, they are deemed to be delivered
to the Korean Intellectual Property Office or
the Intellectual Property Tribunal on the date
as stamped by the mail service if the stamped
date is clear; however, if such stamped date
is unclear they are deemed to be delivered on
the date when the mail was submitted to a post
office, provided that such date is proved by
a receipt therefor. However, this provision
shall not apply in cases where written applications
for registration of a patent right and other
rights related thereto and documents concerning
an international application under Article 2(vii)
of the Patent Cooperation Treaty (hereinafter
referred to as an "international application")
are submitted by mail.
(3) deleted.
(4) Details concerning the submission of
documents with regard to the delay of mail,
loss of mail, or interruption of mail service,
other than the provisions of paragraphs (1)
to (2), shall be prescribed by the Ordinance
of the Ministry of Commerce, Industry, and Energy.
Article 28bis ーEntry
of Identification Number―
(1) A person provided for by the Ordinance
of the Ministry of Commerce, Industry and Energy
from among persons who initiates a procedure
for patent (excluding any person to whom an
identification number has already been granted
under paragraph (2) or (3)), shall apply for
the grant of his identification number to the
Korean Intellectual Property Office or the Intellectual
Property Tribunal.
(2) If any person makes an application under
paragraph (1), the Commissioner of the Korean
Intellectual Property Office or the President
of the Intellectual Property Tribunal shall
grant an identification number and notify him
thereof.
(3) If a person who initiates a procedure
for patent under paragraph (1) fails to apply
for the grant of an identification number, the
Commissioner of the Korean Intellectual Property
Office or the President of the Intellectual
Property Tribunal shall, ex officio, grant an
identification number and notify him thereof.
(4) If a person to whom an identification
number has been granted under paragraph (2)
or (3) initiates a procedure for patent, he
shall enter his identification number in any
document as prescribed by the Ordinance of the
Ministry of Commerce, Industry and Energy. In
this case, notwithstanding the provisions of
this Law or any decree thereunder, a domicile
(a place of business if a legal entity) may
not be entered in said document.
(5) The provisions of paragraphs (1) to (4)
shall apply mutatis mutandis to an agent of
a person who initiates a procedure for patent.
(6) An application for grant of an identification
number, the grant and notification thereof or
other matters necessary therefor shall be prescribed
by the Ordinance of the Ministry of Commerce,
Industry and Energy.
Article 28ter ーProcedure
for Filing Patent Applications by Means of Electronic
Documents―
(1) A person who initiates a patent-related
procedure may, pursuant to the methods prescribed
by Ordinance of the Ministry of Commerce, Industry
and Energy, convert a written application for
a patent or other documents as presented to
the Commissioner of the Korean Intellectual
Property Office or the President of the Intellectual
Property Tribunal under this Law into electronic
documents, and may present them by means of
any communication network or on a floppy disk
in which they are written.
(2) Electronic documents as presented under
paragraph (1) shall have the same effect as
other documents presented under this Law.
(3) Electronic documents presented through
a communication network under paragraph (1)
shall, if a presenter thereof confirms a receipt
number through a communication network, be deemed
to have been received as contents written in
a file of a computer system for receipt operated
by the Korean Intellectual Property Office or
the Intellectual Property Tribunal.
(4) The kinds of documents capable of being
presented by means of electronic documents under
paragraph (1) and the methods of such presentation
or other necessary matters shall be prescribed
by the Ordinance of the Ministry of Commerce,
Industry and Energy.
Article 28quater ーReport
on Use of Electronic Documents and Electronic
Signature―
(1) A person who intends to initiate a procedure
for patent by means of electronic documents
shall, in advance, report the use thereof to
the Commissioner of the Korean Intellectual
Property Office or the President of the Intellectual
Property Tribunal, and shall affix his electronic
signature so that the presenters may be discerned.
(2) Electronic documents as presented under
Article 28ter shall be deemed to have been filed
by the person who affixes his electronic signature
under paragraph (1).
(3) Matters necessary for procedures of report
on use of electronic documents and the methods
of electronic signature as prescribed under
paragraph (1), shall be prescribed by the Ordinance
of the Ministry of Commerce, Industry and Energy.
Article 28quinquies
ーNotification, etc. through a Communication
Network―
(1) If the Commissioner of the Korean Intellectual
Property Office, the President of the Intellectual
Property Tribunal, a presiding trial examiner,
a trial examiner, a presiding examiner, or an
examiner intends to give notification and make
transmission (hereinafter referred to as a "notification")
of any pertinent documents to a person who reports
the use of electronic documents under Article
28quater(1), he may do so through a communication
network.
(2) The notification of any pertinent documents
given through a communication network under
paragraph (1) shall have the same effect as
that given in writing.
(3) The notification of any pertinent documents
under paragraph (1) shall, if it is written
in a file of a computer system operated by a
person who receives said notification, be deemed
to reach as contents written in a file of a
computer system for transmission operated by
the Korean Intellectual Property Office or the
Intellectual Property Tribunal.
(4) Matters necessary for the classification
and the methods of such notification as given
through a communication network under paragraph
(1) shall be prescribed by the Ordinance of
the Ministry of Commerce, Industry and Energy.
CHAPTER II REQUIREMENTS FOR PATENTS
AND PATENT APPLICATION
Article 29 ーRequirements
for Patents―
(1) Inventions having Intellectual applicability
may be patentable unless they fall under any
of the following subparagraphs:
(i) inventions publicly known or worked in
the Republic of Korea prior to the filing of
the patent application; or
(ii) inventions described in a publication
distributed in the Republic of Korea or in a
foreign country prior to the filing of the patent
application or inventions made accessible to
the public through electric communication lines
as prescribed by Presidential Decree.
(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), a patent
shall not be granted where the invention for
which a patent application is filed is identical
to an invention or device described in the specification
or drawings initially attached to another patent
application laid open or published after grant
for public inspection after the filing of said
patent application, or identical to a utility
model application published after grant for
public inspection after the filing of said patent
application. This provision shall not apply,
however, in cases where the inventor of the
concerned patent application 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 that 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
not Deemed to be Publicly Known, etc.―
(1) If a patentable invention falls under
any of the following subparagraphs, it shall
be recognized as being novel where Articles
29(1) or (2) apply to the invention claimed
in the patent application; provided that, the
patent application therefor is filed within
six months of the applicable date:
(i) 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 any one of the following
acts on the invention:
(a) conducting tests on the invention;
(b) publishing the invention in printed matter;
(c) publishing the invention through electric
communication lines as prescribed by Presidential
Decree; or
(d) presentation of the invention in writing
before an academic organization as prescribed
by Ordinance of the Ministry of Commerce, Industry
and Energy.
(ii) 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
(iii) 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.
(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 Intellectual
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 Intellectual
Property Office and the Intellectual Property
Tribunal shall not 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 the
provision of Article 33(1) as prescribed in
Article 62(ii), 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 on which 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 to revoke a patent becomes
final for lack of entitlement to obtain a patent
under the provision of Article 33(1) as prescribed
in Article 69(1)(ii) or a decision of invalidation
becomes final due to a lack of entitlement under
the provision of Article 33(1) 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 revoked 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 cases 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,
or a utility model application is rejected,
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 Intellectual
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) Succession to the right to obtain a patent
after the filing of the patent application shall
not be effective unless a notice of change of
applicant is filed, except in cases 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 Intellectual Property Office accordingly
without delay.
(6) Where two or more notifications of change
of applicant 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 an "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) Notwithstanding paragraph (1), an in-service
invention made by a public official shall pass
to the State or a local governmental entity
and the patent right shall thereby revert to
the State or a local governmental entity.
(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 Intellectual
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 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
and the employee's contributions to the creation
of the invention. Matters relating to the payment
of remuneration shall be prescribed by Presidential
Decree or by Ordinance of the local governmental
entity.
(3) If the State or a local governmental
entity 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
shall be prescribed by Presidential Decree or
by Ordinance of the local governmental entity.
(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
Intellectual 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 losses arising from its prohibition of the
filing of a patent application in a foreign
patent office or from the maintenance of 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 Intellectual Property Office stating
the following:
(i) the name and the domicile of the applicant
(if a legal entity, the title and place of business);
(ii) the name and the domicile, or place
of business, of the agent, if any ( the title,
place of business and the name of the designated
patent attorney if the agent is a patent corporation);
(iii) Deleted.
(iv) the title of the invention;
(v) the name and the domicile of the inventor.
(vi) Deleted.
(2) The patent application under paragraph
(1) shall be accompanied by a specification,
drawing or drawings (if necessary), and an abstract
stating the following:
(i) the title of the invention;
(ii) a brief explanation of the drawings;
(iii) a detailed description of the invention;
and
(iv) 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:
(i) the claim(s) shall be supported by a
detailed description of the invention;
(ii) the claim(s) shall define the invention
clearly and concisely; and
(iii) 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 Intellectual
Property Office or the President of the Intellectual
Property Tribunal may order an amendment to
a patent-related procedure, designating a time
limit if said procedure falls under any of the
following subparagraphs:
(i) where the procedure has not complied
with the provisions of Article 3(1) or 6;
(ii) where the procedure has not complied
with the formalities specified in the Patent
Law or Presidential Decree thereof; or
(iii) where fees required in accordance with
Article 82 have not been paid.
Article 47 ーAmendment
of Patent Application―
(1) An applicant may amend the specification
or drawings attached to a patent application
before the examiner issues a certified copy
of a decision to grant a patent under Article
66. However, in cases that fall under any of
the following subparagraphs, an applicant may
amend the application within the time limit
prescribed in the subparagraphs:
(i) where an applicant receives notification
of the reasons for refusal under Article 63
(hereinafter referred to as a "notice of
the reasons for refusal") for the first
time or receives a notice of the reasons for
refusal that does not apply under paragraph
(ii), the time limit designated for submission
of arguments against the notice of the reasons
for refusal thereof;
(ii) where an applicant receives a notice
of the reasons for refusal of an amendment made
in response to a notice of the reasons for refusal
issued under paragraph (i), the time limit designated
for submission of arguments in response to said
notice; or
(iii) where an applicant requests a trial
against a decision of rejection of a patent
under Article 132ter, the time limit shall be
thirty days from the filing date of the request.
(2) An amendment to a specification or drawings
under paragraph (1) shall be within the scope
of the features disclosed in the specification,
claims or drawing(s) originally attached to
the application.
(3) An amendment to the claims made under
paragraphs (1)(ii) and (iii) shall be limited
to the scope prescribed in any of the following
subparagraphs. Where an amendment is made under
paragraph (iii), it shall be limited to that
which is indicated by the examiner in the notice
of the reasons for refusal.
(i) to narrow a claim;
(ii) to correct a clerical error; or
(iii) to clarify an ambiguous description.
(4) An amendment under paragraph (3)(i) shall
meet the following requirements:
(i) An amendment to a specification or drawings
shall neither essentially expand nor modify
the scope of the claims; and
(ii) The matters described in the claims
after amendment shall be regarded as having
been patentable at the time of the filing of
the patent application.
Article 48 Deleted
Article 49 ーTreatment
of an Amendments to a Dual Application, etc.―
(1) Deleted.
(2) If a dual application, as prescribed
in Article 53, is recognized to extends beyond
the scope described in the claims of the utility
model registration in the specification that
was initially attached to the application for
utility model registration after registration
of the patent right has been established, said
dual application shall be deemed to have been
filed on the date when the application in writing
was submitted.
Article 50 Deleted
Article 51 ーRejection
of an Amendment―
(1) Where an amendment under Article 47(1)(ii)
is deemed to be in violation of paragraphs (2)
to (4) of said Article, the examiner shall reject
the amendment by decision.
(2) The decision to reject an amendment under
paragraph (1) shall be made in writing and shall
state the reasons therefor.
(3) No appeal shall be made against a decision
to reject under paragraph (1). However, this
provision shall not apply in an appeal against
the final rejection of the patent under Article
132ter.
Article 52 ーDivision
of a 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(1).
(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:
(i) 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;
(ii) in the case where Article 30(2) is applicable;
(iii) in the case where Article 54(3) is
applicable; or
(iv) in the case where Article 55(2) is applicable.
(3) A person who files a divisional application
under paragraph (1) shall indicate the purpose
thereof and the patent application that forms
the basis of the division.
(4) 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 Intellectual 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 from the filing
date of the application for utility model registration
to 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:
(i) 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;
(ii) in cases where Article 30(2) is applicable;
(iii) in cases where Article 54(3) is applicable;
or
(iv) in cases 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
Intellectual 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 under paragraph (3) shall submit to
the Commissioner of the Korean Intellectual
Property Office the documents prescribed in
paragraph (i) or the written statement prescribed
in paragraph (ii). However, the written statement
referred to in paragraph (ii) shall be submitted
only in cases where the country is prescribed
by Ordinance of the Ministry of Commerce, Industry
and Energy:
(i) a written statement setting forth the
filing date of the application and a copy of
the specification and drawings certified by
the government of the country where the initial
application was filed; or
(ii) a written statement setting forth the
file number of the application in the country
where the initial application was filed.
(5) Documents under paragraph (4) shall be
submitted within one year and four months from
the earliest among the dates prescribed in the
following subparagraphs:
(i) the date on which the application was
first filed in a country that is a party to
a treaty;
(ii) 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
(iii) the filing date of the application
that is to be the basis for claiming a priority
right in cases where a patent application contains
other priority claims in accordance with paragraph
(3).
(6) Where a person who has claimed the right
of priority under 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.
(7) A person who is eligible to claim the
right of priority under paragraph (1) and is
in compliance with the requirements of paragraph
(2) may amend or supplement said priority claims
within one year and four months from the earliest
date prescribed under paragraph (5).
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:
(i) where the patent application concerned
is filed more than one year from the filing
date of the earlier application;
(ii) 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;
(iii) where the earlier application has been
abandoned, invalidated, withdrawn or rejected
at the time the patent application is filed;
(iv) where an examiner's decision to grant
or refuse a patent, or a trial decision on the
earlier application has become final and conclusive;
or
(v) 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 | 