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CHAPTER ¥² TECHNICAL
EVALUATION
Article 21 ¡¼Request for Technical Evaluation
of Utility Models¡½
(1) Any person may request a technical evaluation
of a device claimed in a utility model
application or registered utility model to
the Commissioner of the Korean Industrial Property
Office. Where the utility model application
or registered utility model contains two or
more
claims, a request may be made for each claim.
(2) A request under paragraph (1) may be
made even after the extinguishment of a utility
model right. However, where a utility model
registration is revoked by a decision of revocation
under Article 74(3) of the Patent Law as
applied mutatis mutandis under Article 48 of
this
Law, or invalidated by an invalidation trial
under Article 49(1) of this Law, this provision
shall
not apply.
(3) A request under paragraph (1) shall not
be withdrawn.
(4) Requisite procedures etc. for a request
for technical evaluation of a utility model
shall be
prescribed by Presidential Decree.
Article 22 ¡¼Technical Evaluation by Examiner¡½
(1) When a request under Article 21(1) of
this Law has been submitted, the Commissioner
of
the Korean Industrial Property Office shall
designate an examiner to technically evaluate
the
utility model.
(2) The provisions of Article 57(2) of the
Patent Law shall be applied, mutatis mutandis,
for
the qualification of examiners.
Article 23 ¡¼Publication of Request for
Technical Evaluation¡½
(1) When a request for a technical evaluation
of a utility model application has been made
prior to the publication of a registration
of the utility model application, the Commissioner
of
the Korean Industrial Property Office shall
publish the request in the Utility Model Gazette
simultaneously with the publication of the
registration.
(2) When a request for a technical evaluation
of a registered utility model is made after
the
publication of the registration, the Commissioner
of the Korean Industrial Property Office
shall publish such facts in the Utility Model
Gazette without delay.
(3) Where a request for a technical evaluation
has been made by a person other than the
owner of a utility model right, the Commissioner
of the Korean Industrial Property Office shall
notify the owner of the utility model right
of such facts.
Article 24 ¡¼Prior Art Search¡½
(1) If it is deemed necessary for a technical
evaluation of a utility model, the Commissioner
of the Korean Industrial Property Office
may rely on a specialized search organization
for
searching prior art documents related to
the utility model.
(2) Requisite matters on the requirements
for the specialized search organization and
implementing procedures for searching documents
under paragraph (1) shall be prescribed
by Presidential Decree.
Article 25 ¡¼Decision on Request for Technical
Evaluation¡½
(1) An examiner shall make a decision revoking
a utility model registration (hereinafter
referred to as a "decision of revocation"),
if any of the conditions specified in the following
subparagraphs apply in view of the results
of a technical evaluation:
(¥¡) the utility model registration is in
violation of the provisions of Article 25 of
the Patent
Law as applied mutatis mutandis under Article
4 of this Law; Articles 5, 7, 8(1) to 8(4),
9(3)
and 9(4) of this Law; or Articles 33 and
44 of the Patent Law as applied mutatis mutandis
under Article 20 of this Law;
(¥¢) the utility model is registered to a
person who is not entitled to obtain a utility
model
registration;
(¥£) the utility model registration is in
violation of a treaty; or
(¥¤) after a registration of the utility
model, the owner of the utility model right
has become
incapable of enjoying the utility model right
under Article 25 of the Patent Law as applied
mutatis mutandis under Article 4 of this
Law, or the utility model right no longer complies
with a treaty.
(2) If the utility model registration does
not fall under any of the subparagraphs of paragraph
(1) in view of the results of a technical
evaluation, an examiner shall render a decision
to
maintain the utility model registration (hereinafter
referred to as a "decision of maintenance").
Where an examiner cannot determine whether
the utility model registration violates
provisions of Articles 5(3) and 5(4) or 8(1)
to 8(4), he shall state such decision and reasons
therefor.
(3) The examiner shall, when intending to
make a decision of revocation under paragraph
(1),
notify the requester of the technical evaluation
and the owner of the utility model right of
the
reasons for revocation, and provide the requester
and owner with an opportunity to submit a
written statement of arguments, designating
a time limit for such submission.
(4) Where a decision of revocation under
paragraph (1) has become final and conclusive,
the
utility model right shall be deemed never
to have existed. However, if a decision of revocation
rendered under paragraph (1)(iv) has became
final and conclusive, the utility model right
shall
be deemed not to have existed as of the time
the utility model registration first become
subject to paragraph (1)(iv).
(5) No appeal shall be made against the decision
of maintenance under paragraph (2).
Article 26 ¡¼Manner of Decision on Request
for Technical Evaluation¡½
(1) The examiner's decision on a request
for technical evaluation shall be made in writing
and
shall state the reasons therefor.
(2) When an examiner's decision under paragraph
(1) has been rendered, the Commissioner
of the Korean Industrial Property Office
shall transmit a certified copy of the decision
to the
requester of the technical evaluation and
the owner of the utility model right.
Article 27 ¡¼Correction of Utility Model
Registration¡½
(1) An owner of a utility model right may
request in writing correction of the specification
or
drawings in a utility model application,
if a state of arguments is submitted within
the time
limit designated under Article 25(3) of this
Law.
(2) A request for correction under paragraph
(1) may be made only for the following reasons:
(¥¡) to narrow the claims;
(¥¢) to correct clerical errors; or
(¥£) to clarify ambiguous descriptions.
(3) Where a request for correction under
paragraph (1) has been made by a person other
than the owner of the utility model right,
the examiner shall transmit a copy of the written
request for correction to the requester of
a technical evaluation.
(4) The provisions of Articles 77(3) and
77(4) of the Patent Law shall apply mutatis
mutandis
with respect to corrections for a utility
model registration.
Article 28 ¡¼Suspension of Technical Evaluation
Proceedings¡½
(1) Proceedings for a technical evaluation
may, if necessary, be suspended until a decision
on an opposition or a trial decision becomes
final and conclusive.
(2) A presiding court may, if necessary,
suspend a litigation proceeding until a decision
on a
technical evaluation becomes final and conclusive.
(3) No appeal shall be made against the suspension
under paragraphs (1) and (2).
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