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CHAPTER V UTILITY MODEL
RIGHT
Article 35 ¡¼Registration of Establishment
of Utility Model Right and Publication of Registration¡½
(1) A utility model right shall come into
effect upon registration of its establishment.
(2) The Commissioner of the Korean Industrial
Property Office shall register the
establishment of a utility model right except
where the utility model application comes under
the subparagraphs of Article 11 or the subparagraphs
of Article 12, or has been abandoned
or withdrawn. However, if a situation in
any of the following subparagraphs applies,
the
Commissioner of the Korean Industrial Property
Office shall register the establishment of the
utility model right only if a corresponding
patent right has been abandoned:
(¥¡) where a patent application provided
the basis for a dual application, and the
establishment of the patent right is registered;
or
(¥¢) where there is a patent application
based on a utility model application under Article
53
of the Patent Law (referred to herein as
a dual application) and the establishment of
the
patent right from the dual application is
registered.
(3) Where a registration has been made under
paragraph (2), the Commissioner of the
Korean Industrial Property Office shall publish
the registration of the utility model together
with relevant information in the Utility
Model Gazette.
(4) The Commissioner of the Korean Industrial
Property Office shall reserve the publication
of
the registration of a utility model under
paragraph (3), if the utility model application
is
ordered to be confidentially treated under
Article 41(1) of the Patent Law as applied mutatis
mutandis under Article 20 of this Law until
it is declassified, and, upon declassification,
shall
publish the registration without delay.
(5) The Commissioner of the Korean Industrial
Property Office shall make application
documents and materials attached thereto
available for public inspection for a period
of three
months from the date of publication of the
registration under paragraph (3).
(6) When a registration is published under
paragraph (3), any person may submit to the
Commissioner of the Korean Industrial Property
Office, information with supporting evidence
that the:
(¥¡) utility model application is unregistrable
under Article 5, 7 or 8(1) to 8(4); or
(¥¢) utility model application does not meet
the requirements of Article 9(3) or 9(4)
(7) Matters to be published in the Utility
Model Gazette with respect to publication of
registrations under paragraph (3) shall be
prescribed by Presidential Decree.
Article 36 ¡¼Term of Utility Model Right¡½
(1) The term of a utility model right shall
be ten years from the filing date of the utility
model
application, commencing from the registration
date of the establishment of the utility model.
(2) Where a utility model right is granted
to a lawful holder of the right under Article
35 of the
Patent Law as applied mutatis mutandis under
Article 20 of this Law, the term of the utility
model right under paragraph (1) shall be
calculated from the date following the filing
date of
the utility model application filed by the
unentitled person.
(3) Where a utility model application is
deemed to have been filed at the time of submission
of an amendment under Article 15(1) of this
Law, the term of the utility model right under
paragraph (1) shall be calculated from the
date following the filing date of the original
utility
model application.
(4) Where a utility model application is
deemed to have been filed at the time of filing
a dual
application under Article 15(2) of this Law,
the utility model term under paragraph (1) shall
be
calculated from the date following the filing
date of the patent application which provided
basis for the dual application.
Article 37 ¡¼Effects of Utility Model
Right¡½
The owner of a utility model right shall
have the exclusive right to work the registered
utility
model commercially and industrially. However,
where the utility model right is the subject
of
an exclusive license, this provision shall
not apply to the extent that the exclusive licensee
has the exclusive right to work the registered
utility model under Article 100(2) of the Patent
Law as applied mutatis mutandis under Article
42 of this Law.
Article 38 ¡¼Limitations on Utility Model
Right¡½
The effects of the utility model right shall
not extend to the following:
(¥¡) working of the registered utility model
for the purpose of research or experimentation;
(¥¢) vessels, aircraft or vehicles merely
passing through the Republic of Korea or machinery,
instruments, equipment or other accessories
used therein; or
(¥£) articles existing in the Republic of
Korea at the time the utility model application
was
filed.
Article 39 ¡¼Relation to Registered Utility
Model, and the like, of Another Person's¡½
Where working of a registered utility model
would utilize another person's registered utility
model, patented invention or registered design
or a design similar to such registered design
under an application filed prior to the filing
date of the application for said registered
utility
model, or where a utility model right conflicts
with another person's design right under a
design application for registration filed
prior to the filing date of the application
for said
registered utility model, the owner of the
utility model right or exclusive or non-exclusive
licensee shall not work the registered utility
model commercially or industrially without the
license of the owner of the earlier utility
model, patent or design right, except where
a
non-exclusive license is obtained by a trial
under Article (53)(1).
Article 40 ¡¼Non-exclusive License Due
to Working Prior toRegistration of Request for
Invalidation Trial¡½
(1) Where a person falling within any of
the following subparagraphs, prior to the registration
of a request for an invalidation trial of
a relevant registered utility model or patent,
has been
working a device in the Republic of Korea,
commercially or industrially, in good faith,
or has
been making preparations therefor, without
knowing that the registered utility model or
patent
is subject to invalidation, regardless of
whether the utility model registration is based
on a
decision of maintenance under Article 25(2)
of this Law or whether he has given other
substantial attention to such matters, or
has been working an invention in the Republic
of
Korea, commercially or industrially, in food
faith, or has been making preparation therefor,
without knowing that his patent was subject
to invalidation, such person shall have a
non-exclusive license on that utility model
or patent right or on the exclusive license
existing
at the time when the utility model registration
or patent was invalidated, however, such
non-exclusive license shall be limited to
the device or invention which is being worked
or for
which preparations for working are being
made and to the purpose of such working or
preparations therefor:
(¥¡) the original owner of a utility model
right, where one of two or more utility model
registrations granted for the same device
has been invalidated;
(¥¢) the original owner of a patent right,
where a registered utility model and a patented
invention are the same and the patent has
been invalidated;
(¥£) the original owner of a utility model
right, where his utility model registration
has been
invalidated and a utility model registration
for the same device has been granted to an
entitled person;
(¥¤) the original patentee, where his patent
has been invalidated and a utility model
registration for the same device as the invention
has been granted to an entitled person; or
(¥¥) in cases referred to in subparagraphs
(i) to (iv), a person who, at the time of registration
of the request for an invalidation trial
of the invalidated utility model or patent right,
has been
granted an exclusive license or a non-exclusive
license, or a non-exclusive license on the
exclusive license, and such license has been
registered. However, a person falling under
Article 118(2) of the Patent Law is not required
to register the license.
(2) A person who has been granted a non-exclusive
license under paragraph (1) shall pay
reasonable remuneration as consideration
for the non-exclusive license to the owner of
a
utility model right or the exclusive licensee.
Article 41 ¡¼Non-exclusive License after
Expiration of Design Right¡½
(1) Where a design right filed and registered
prior to or on the filing date of a utility
model
application conflicts with the utility model
right, and the term of the design right has
expired,
the owner of such design right shall have
a non-exclusive license on the utility model
right to
the extent of such design right, or on the
exclusive license existing at the time when
the
design right expired.
(2) Where a design right filed and registered
prior to or on the filing date of a utility
model
application conflicts with the utility model
right, and the term of the design right has
expired,
a person who, at the time of expiration,
has an exclusive license on the expired design
right
or a non-exclusive license (limited to the
non-exclusive license under Article 118(1) of
the
Patent Law as applied mutatis mutandis under
Article 61 of the Design Law) on the expired
design right or on the exclusive license,
shall, to the extent of the scope of the expired
right,
have a non-exclusive license on said utility
model right or on the exclusive license existing
at
the time when the design right expired.
(3) A person who has been granted a non-exclusive
license under paragraph (2) shall pay
reasonable remuneration as consideration
for the non-exclusive license to the owner of
the
utility model right or the exclusive licensee.
Article 42 ¡¼Mutatis Mutandis Application
of Provisions of the Patent Law¡½
The provisions of Articles 97, 99 to 103
and 106 to 125 of the Patent Law shall apply
mutatis
mutandis with respect to utility model rights.
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