「PATENT ACT
」
PATENT ACT
[Enforcement Date 01. Jan, 2015.] [Act No.12753, 11. Jun, 2014., Partial Amendment]
특허청 (특허심사제도과) 042-481-5397
특허청 (특허심사기획과) 042-481-5395
CHAPTER I GENERAL PROVISIONS
Article 1 (Purpose)
The purpose of this Act is to promote the development of technologies and to
contribute to industrial development by protecting and supporting inventions and
promoting the use of inventions.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 2 (Definitions)
The terms used in this Act shall be defined as follows:
1. The term "invention" means the highly advanced creation of a technical idea
utilizing the laws of nature;
2. The term "patented invention" means an invention for which a patent has been
granted;
3. The term "working" means any of the following activities:
(a) An invention of a thing: Manufacturing, using, selling, leasing, importing the
thing or offering to sell or lease the thing (including displaying a thing for the
purpose of sale or lease; hereinafter the same shall apply);
(b) An invention of a process: Using the process;
(c) An invention of a process of manufacturing a thing: Using, selling, leasing, or
importing a thing manufactured by the process or offering to sell or lease such
thing, other than the activities specified in item (b).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 3 (Legal Capacity of Minors, etc.) (1) No minor, quasi-incompetent under
limited guardianship, nor incompetent under adult guardianship shall file any
application or request, or initiate any other procedure in connection with any patent
(hereinafter referred to as "patent-related procedure") unless represented by
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his/her legal representative: Provided, That the foregoing shall not apply where a
minor or a quasi-incompetent under limited guardianship may engage in a legal act
independently.
(2) The legal representative referred to in paragraph (1) may, without consent of
the supervisor of guardianship, take procedures for a trial or retrial initiated by a
third party.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 4 (Unincorporated Associations, etc.)
A representative or an administrator appointed by an unincorporated association or
foundation may become a petitioner requesting the examination of a patent
application or a petitioner or defendant for a trial or retrial in the name of the
unincorporated association or foundation.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 5 (Patent Administrators for Overseas Residents) (1) No person with no
domicile or place of business in the Republic of Korea (hereinafter referred to as
“overseas resident”) shall initiate any patent-related procedure or file legal
proceedings against a disposition made by an administrative authority under this Act
or an order issued under this Act, unless he/she is represented by an agent with
respect to his/her patent, who has a domicile or place of business in the Republic of
Korea (hereinafter referred to as “patent administrator”), except where the
overseas resident (or the representative if the overseas resident is a corporation)
resides in the Republic of Korea.
(2) A patent administrator shall represent his/her principal in all patent-related
procedures and legal proceedings filed with respect to a disposition made by an
administrative authority under this Act or an order issued under this Act, within the
scope of authority delegated to him/her.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 6 (Scope of Power of Attorney)
An agent to whom power of attorney is granted by a person a domicile or place of
business in the Republic of Korea shall conduct any of the following acts, only if
expressly so empowered. The foregoing shall also apply to a patent administrator:
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1. To modify, abandon or withdraw a patent application;
2. To relinquish a patent;
3. To withdraw an application for registering the extension of the term of a patent;
4. To withdraw an application;
5. To withdraw a request;
6. To claim a priority under Article 55 (1) or withdraw a priority claim
7. To file a petition for trial under Article 132-3;
8. To appoint a sub-agent.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 7 (Proof of Power of Attorney)
A person who initiates a patent-related procedure as an agent (including a patent
administrator; hereinafter the same shall apply) shall provide evidence of the
relevant power of attorney in writing.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 7-2 (Ratification of Acts of Persons Lacking Legal Capacity)
Procedures initiated by a person who lacks legal capacity or authority for legal
representation, or by a person whose power of attorney is defective, which is
necessary for initiating a patent-related procedure, shall take effect retroactively
back to the time such procedures were initiated, if the procedures are ratified by the
principal or legal representative when he/she has gained capacity to proceed.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 8 (Survival of Power of Attorney)
The power of attorney granted to an agent by a person who initiates a patent-
related procedure shall survive even in any of the following events:
1. The principal’s death or loss of legal capacity;
2. The corporate principal’s dissolution in the course of a merger;
3. The termination of the principal’s duty as a trustee;
4. The legal representative’s death or loss of legal capacity to act;
5. The termination of, or a change in, the legal representative’s power of attorney.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 9 (Independence of Representation)
If a person who initiates a patent-related procedure is represented by at least two
agents, each of them shall independently represent the principal before the
Commissioner of KIPO (hereinafter referred to as “KIPO”) or the President of
KIPT (hereinafter referred to as “KIPT”).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 10 (Orders to Appoint or Replace Agents, etc.) (1) If the Commissioner of
KIPO or the presiding administrative patent judge appointed under Article 145 (1)
(hereinafter referred to as “presiding judge”) finds that a person initiating a
patent-related procedure is unable to properly perform the procedure or to make a
statement in oral hearings or is incompetent in initiating the procedure on any other
ground, he/she may issue an order to appoint an agent who shall initiate the
procedure on behalf of the person.
(2) If the Commissioner of KIPO or a presiding judge finds that an agent who
initiates a patent-related procedure is unable to properly perform the procedure or
to make a statement in oral hearings or is incompetent in initiating the procedure on
any other ground, he/she may issue an order to replace the agent with a third person.
(3) In cases falling under paragraph (1) or (2), the Commissioner of KIPO or a
presiding judge may order a patent attorney to represent the relevant person.
(4) When the Commissioner of KIPO or a presiding judge orders a person to appoint
or replace his/her agent under paragraph (1) or (2), he/she may completely or
partially invalidate the patent-related procedure initiated by the person under
paragraph (1) or the agent under paragraph (2) before the Commissioner of KIPO or
the President of KIPT .
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 11 (Representation by at Least Two Persons) (1) Where at least two persons
jointly perform a patent-related procedure, each of them shall represent appointing
persons, except for any of the following acts: Provided, That if such persons appoint
their representative and report to the Commissioner of KIPO or the President of
KIPT on the appointment, only the representative may represent all of them:
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1. To modify, abandon or withdraw a patent application;
2. To withdraw an application for registering the extension of the term of a patent;
3. To withdraw an application;
4. To withdraw a request;
5. To claim a priority under Article 55 (1) or withdraw a priority claim;
6. To file a petition for trial under Article 132-3.
(2) When a report is filed under the proviso to paragraph (1), the appointment of
the representative shall be evidenced in writing.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 12 (Application Mutatis Mutandis of the Civil Procedure Act)
Except as otherwise expressly provided for in this Act, Section 4 of Chapter II of
Part I of the Civil Procedure Act shall apply mutatis mutandis to agents.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 13 (Jurisdiction over Overseas Residents)
If an overseas resident has appointed a patent administrator for his/her patents or
any right in a patent, the domicile or place of business of the patent administrator
shall be deemed the place where the property is situated under Article 11 of the Civil
Procedure Act, whereas the seat of KIPO shall be deemed the place where such
property is situated, if an overseas resident has not appointed a patent administrator.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 14 (Calculation of Periods)
The periods specified by this Act or any order issued under this Act shall be
determined as follows:
1. The first day of a period shall not be counted: Provided, That the foregoing shall
not apply where a period commences at midnight;
2. If a period is expressed in months or years, it shall be counted according to the
calendar;
3. If the start of a period does not coincide with the beginning of a month or year,
the period shall expire on the day immediately preceding the date in the last month
or year of the period corresponding to the date on which the period commenced:
Provided, That if a period is counted by months or years but there is no
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corresponding day in the last month, the period shall expire on the last day of that
month;
4. If the last day of a period for performing a patent-related procedure falls on an
official holiday (including the Workers' Day designated under the Designation of
Workers' Day Act and Saturdays), the period shall expire on the working day
following such official holiday.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 15 (Extension, etc. of Periods) (1) Upon request or ex officio, the
Commissioner of KIPO or the President of KIPT may extend the period for filing a
petition for trial under Article 132-3 only once by up to 30 days: Provided, That the
number of extensions and the period may be additionally increased or extended for
the benefit of a person with poor access to transport, as prescribed by Ordinance of
the Ministry of Trade, Industry, and Energy.
(2) When the Commissioner of KIPO, the President of KIPT, a presiding judge, or an
examiner referred to in Article 57 (1) (hereinafter referred to as “examiner”) sets
a period for initiating a patent-related procedure under this Act, he/she may reduce
or extend the period, upon request, or may extend the period, ex officio. In such
cases, the Commissioner of KIPO or other competent authority shall ensure that the
interests of relevant parties in the procedure are not be unfairly infringed on when
determining whether to reduce or extend such period.
(3) Where a presiding judge specifies a deadline for initiating a patent-related
procedure under this Act, he/she may change the deadline, upon request or ex
officio.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 16 (Invalidation of Procedure) (1) When a person ordered to make an
amendment under Article 46 fails to do so within the specified period, the
Commissioner of KIPO or the President of KIPT may invalidate the patent-related
procedure: Provided, That if a person ordered to make an amendment for his/her
failure to pay petition fees for a trial under Article 82 (2) fails to pay the petition
fees, he/she may invalidate the amendment to the specification accompanying the
patent application.
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(2) When a patent-related procedure has been invalidated under paragraph (1), but
it is deemed that the failure to make an amendment within the specified period has
been made due to a cause not attributable to the person ordered to do so, the
Commissioner of KIPO or the President of KIPT may revoke the invalidation within
two months after the relevant cause ceases, upon receipt of a request from the
person ordered to make such amendment: Provided, That the foregoing shall not
apply where one year has passed since the expiration of the specified period.
(3) When the Commissioner of KIPO or the President of KIPT invalidates a
procedure under the main body of, or the proviso to, paragraph (1) or revokes
invalidation under the main body of paragraph (2), he/she shall give written notice of
such measure to the person ordered to make an amendment.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 17 (Subsequent Completion of Procedure)
If a person who has initiated a patent-related procedure fails to complete the
procedure within either of the following periods due to a cause not attributable to
him/her, he/she may subsequently complete the procedure within 14 days after the
cause ceases: Provided, That the foregoing shall not apply where one year has
passed since the expiration of the specified period:
1. A period for filing a petition for trial under Article 132-3;
2. A period for filing a petition for an administrative patent retrial under Article 180
(1).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 18 (Succession of Procedural Effects)
The effects of a procedure taken with respect to a patent or any other right in a
patent shall extend to the successor to the patent or the right in the patent.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 19 (Continuation of Procedure)
Where a patent or any other right in a patent is transferred while a patent-related
procedure is pending in KIPO or KIPT, the Commissioner of KIPO or the presiding
judge may permit the successor to the patent or the right in the patent to continue
the patent-related procedure.
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 20 (Interruption of Procedure)
In any of the following cases, a patent-related procedure pending in KIPO or KIPT
shall be interrupted: Provided, That the foregoing shall not apply where an agent has
been authorized to continue the procedure:
1. If the relevant party dies;
2. If the relevant corporate party dissolves in the course of a merger;
3. If the relevant party loses the capacity to perform the procedure;
4. If the party’s legal representative dies or loses the power of attorney;
5. If the duty of a trustee of a party terminates;
6. If the representative appointed under the proviso to Article 11 (1) dies or
becomes disqualified;
7. If a bankruptcy trustee or a person who has intervened in the procedure for a
third person in his/her name with a certain qualification becomes qualified or dies.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 21 (Resumption of Interrupted Procedure)
If a procedure pending in KIPO or KIPT is interrupted under Article 20, any of the
following persons shall resume the procedure:
1. In cases falling under subparagraph 1 of Article 20: The deceased’s heir, the
administrator of inherited estate, or a person authorized to resume the procedure
under any Act: Provided, That no heir may resume the procedure during the period
in which he/she can renounce inheritance;
2. In cases falling under subparagraph 2 of Article 20: The corporation established
in the course of the merger or the corporation surviving the merger;
3. In cases falling under subparagraph 3 or 4 of Article 20: The party whose
capacity to perform the procedure is reinstated or a person appointed as the legal
representative;
4. In cases falling under subparagraph 5 of Article 20: A new trustee;
5. In cases falling under subparagraph 6 of Article 20: A new representative or
either party;
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6. In cases falling under subparagraph 7 of Article 20: An equally qualified person.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 22 (Applications for Resumption) (1) An application to resume a procedure
interrupted under Article 20 can be filed by a person specified in any subparagraph
of Article 21. In this regard, the adverse party can request the Commissioner of
KIPO or the administrative patent judge referred to in Article 143 (hereinafter
referred to as “administrative patent judge”) to order the person specified in any
subparagraph of Article 21 to file an application to resume.
(2) Upon receipt of an application to resume an interrupted procedure under Article
20, the Commissioner of KIPO or the presiding judge shall notify the adverse party
thereof.
(3) If the Commissioner of KIPO or the presiding judge deems that no grounds exist
to accept an application to resume an interrupted procedure under Article 20 finds,
after examining the application ex officio, he/she shall determine to dismiss the
application.
(4) Upon receipt of an application to resume an interrupted procedure, the
Commissioner of KIPO or the presiding judge shall determine whether to permit the
resumption of the interrupted procedure interrupted after a certified copy of a
decision or trial ruling is served.
(5) If a person specified in any subparagraph of 21 fails to resume the interrupted
procedure, the Commissioner of KIPO or the presiding judge shall, ex officio, order
the person to resume the procedure within the specified period.
(6) If the procedure is not resumed within the period specified in paragraph (5), it
shall be deemed resumed on the day following the expiration of the period.
(7) Where the procedure is deemed resumed under paragraph (6), the
Commissioner of KIPO or the presiding judge shall notify all relevant parties thereof.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 23 (Suspension of Procedure) (1) If the Commissioner of KIPO or an
administrative patent judge is unable to perform any of his/her duties due to a natural
disaster or other extenuating circumstances, the procedure pending in KIPO or KIPT
shall be suspended until such circumstances ceases to exist.
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(2) If a relevant party is unable to resume a procedure pending in KIPO or in KIPT
due to an obstacle that persists for an indefinite duration, the Commissioner of KIPO
or the competent administrative patent judge may determine to order the suspension
of the procedure until the obstacle is removed.
(3) The Commissioner of KIPO or an administrative patent judge may revoke the
determination made under paragraph (2).
(4) When the Commissioner of KIPO or the presiding judge suspends a procedure
under paragraph (1) or (2) or revokes a determination under paragraph (3), he/she
shall notify all relevant parties thereof.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 24 (Effects of Interruption or Suspension)
When a patent-related procedure is interrupted or suspended, the running of the
relevant period shall be interrupted, and the entire period shall commence from the
time the resumption of the procedure is notified or the procedure is resumed.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 25 (Legal Capacity of Foreigners to Hold Rights)No overseas-resident foreigner
shall enjoy a patent or any right in a patent, except in any of the following cases:
1. Where the country to which a foreigner belongs allows nationals of the Republic
of Korea to enjoy a patent or any right in a patent under the same terms and
conditions as those applicable to the nationals of the country;
2. Where the country to which a foreigner belongs allows nationals of the Republic
of Korea to enjoy a patent or any right in a patent under the same terms and
conditions as those applicable to the nationals of the country, if the Republic of
Korea allows the foreigner to enjoy a patent or any right in a patent;
3. Where a foreigner is allowed to enjoy a patent or any right in a patent under a
treaty or any arrangement equivalent to a treaty (hereinafter referred to as
"treaty").
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 26 Deleted. <by Act No. 11117, Dec. 2, 2011>
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Article 27 Deleted. <by Act No. 6411, Feb. 3, 2001>
Article 28 (Effective Date of Submission of Documents) (1) An application, request, or
any other document (including things; hereafter the same shall apply in this Article),
filed with the Commissioner of KIPO or the President of KIPT under this Act or any
order issued under this Act, shall take effect on the date it is issued to the
Commissioner of KIPO or the President of KIPT. <Amended by Act No. 12753, Jun.
11, 2014>
(2) If an application, request, or any other document referred to in paragraph (1) is
filed with the Commissioner of KIPO or the President of KIPT by post, it shall be
deemed issued to the Commissioner of KIPO or the President of KIPT on the date
specified in either of the following, whichever is relevant: Provided, That if
documents for applying for registration of a patent or any right in a patent or
documents regarding international applications defined in Article 2 (vii) of the Patent
Cooperation Treaty (hereinafter referred to as "international application") are
submitted by post, such documents shall take effect on the date they are issued to
the Commissioner of KIPO or the President of KIPT: <Amended by Act No. 12753,
Jun. 11, 2014>
1. If the date stamped on the post by a postal authority is clear: The date stamped
thereon;
2. If the date stamped on the post by a postal authority is unclear: The date
evidenced by the receipt of the post.
(3) Deleted. <by Act No. 5576, Sep. 23, 1998>
(4) Except as otherwise expressly provided for in paragraphs (1) and (2), matters
necessary for submitting documents where the delivery of post is delayed, post is
lost, or postal service is interrupted shall be prescribed by Ordinance of the Ministry
of Trade, Industry, and Energy. <Amended by Act No. 12753, Jun. 11, 2014>
Article 28-2 (Entry of Identification Number) (1) A person specified by Ordinance of
the Ministry of Trade, Industry, and Energy, who initiate a patent-related procedure,
shall apply for issuance of his/her identification number to the Commissioner of KIPO
or the President of KIPT.
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(2) Upon receipt of an application under paragraph (1), the Commissioner of KIPO
or the President of KIPT shall issue an identification number to the applicant and
notify the applicant thereof.
(3) The Commissioner of KIPO or the President of KIPT shall, ex officio, issue an
identification number to a person who initiates a patent-related procedure, if the
person fails to apply for his/her identification number under paragraph (1), and shall
notify the person thereof.
(4) A person issued his/her identification number under paragraph (2) or (3) shall
state the identification number in the documents specified by Ordinance of the
Ministry of Trade, Industry, and Energy, when he/she takes a patent-related
procedure. In such cases, he/she may elect not to state his/her domicile (if such
person is a corporation, his/her place of business) in such documents,
notwithstanding this Act or any order issued under this Act.
(5) Paragraphs (1) through (4) shall apply mutatis mutandis to an agent of a person
who takes a patent-related procedure.
(6) Filing applications for issuance of an identification number, and issuance and
notification of an identification number, and other matters necessary for identification
numbers shall be prescribed by Ordinance of the Ministry of Trade, Industry, and
Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 28-3 (Procedure for Filing Patent Applications by Electronic Documents) (1) A
person who initiates a patent-related procedure may convert a patent application and
other documents to be filed with the Commissioner of KIPO or the President of KIPT
under this Act, into electronic documents by the method prescribed by Ordinance of
the Ministry of Trade, Industry, and Energy, and submit them via an information and
communications network or by means of any electronic recording medium, such as a
portable storage device.
(2) Electronic documents submitted under paragraph (1) shall be as valid as paper
documents submitted under this Act.
(3) An electronic document submitted via an information and communications
network under paragraph (1) shall be deemed received as the contents recorded in
the file saved in the electronic information processing system used by KIPO or KIPT
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to receive documents at the time the person who submits the document can confirm
the filing number via the information and communications network.
(4) The kinds of documents that can be submitted by electronic documents under
paragraph (1), the method of submission, and other matters necessary for submitting
documents as electronic documents shall be prescribed by Ordinance of the Ministry
of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 28-4 (Reporting on Use of Electronic Documents and Digital Signature) (1) A
person who intends to take a patent-related procedure using electronic documents
shall report such use of electronic documents to the Commissioner of KIPO or the
President of KIPT, and shall affix his/her digital signature on electronic documents
submitted to the Commissioner of KIPO or the President of KIPT to identify the
person who submits the documents.
(2) Electronic documents submitted under Article 28-3 shall be deemed submitted
by a person whose digital signature is affixed thereon under paragraph (1).
(3) Procedures for reporting the use of electronic documents under paragraph (1),
the method of affixing a digital signature, and other necessary matters shall be
prescribed by Ordinance of the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 28-5 (Notification, etc. via Information and Communications Networks) (1) If
the Commissioner of KIPO, the President of KIPT, a presiding judge, an
administrative patent judge, or an examiner intends to give notice to, or serve a
document (hereinafter referred to as “notification or service of documents”) on, a
person who has reported on the use of electronic documents under Article 28-4 (1),
he/may do so via an information and communications network.
(2) The notification or service of documents via an information and communications
network under paragraph (1) shall be as valid as notification or service in writing.
(3) The notification or service of a document under paragraph (1) shall be deemed
made as the contents recorded in the file stored in the electronic information
processing system used by KIPO or KIPT for forwarding documents at the time the
person to whom such notification or service is addressed accesses the document via
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the electronic information processing system used by the person.
(4) Matters necessary for the kinds and methods of notification and service via an
electronic information and communications system under paragraph (1) shall be
prescribed by Ordinance of the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER II REQUIREMENTS FOR PATENT REGISTRATION AND PATENT
APPLICATIONS
Article 29 (Requirements for Patent Registration) (1) An invention, other than the
following, having industrial applicability is patentable:
1. An invention publicly known or worked in the Republic of Korea or in a foreign
country prior to the filing of a patent application;
2. An invention published in a publication distributed in the Republic of Korea or in a
foreign country prior to the filing of a patent application or an invention disclosed to
the public domain via telecommunications lines.
(2) Notwithstanding paragraph (1), an invention easily creatable by a person with
ordinary knowledge in the technical field of the invention, on the basis of the
invention referred to in any subparagraph of paragraph (1), prior to the filing of a
patent application, shall not be patentable.
(3) Notwithstanding paragraph (1), an invention shall not be patentable, if the
invention for which a patent application is filed is identical to an invention described
in the specification or drawings initially accompanying a separate patent application
that meets all the following requirements: Provided, That the foregoing shall not
apply where the inventor of the patent application at issue and the inventor of
another patent are the same person, or where the applicant who has filed the patent
application at issue and the applicant for a separate patent application are the same
person:
1. The patent application had been filed before the filing date of the patent
application at issue;
2. The patent application has been laid open under Article 64 or the patent has been
registered and published under Article 87 (3) after the patent application at issue
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was filed.
(4) Notwithstanding paragraph (1), an invention shall not be patentable, if the
invention for which a patent application is filed is identical to a design described in
the specification or drawings initially accompanying an application for registration of
a utility model that meets all the following requirements: Provided, That the
foregoing shall not apply where the inventor of the patent application at issue and the
designer of the utility model for which an application is filed to register are the same
person, or where the applicant who has filed the patent application at issue and the
applicant for registration of a utility model are the same person:
1. The application for registration of a utility model had been filed before the filing
date of the patent application at issue;
2. The application for registration of a utility model has been laid open under Article
64 of this Act, which shall apply mutatis mutandis pursuant to Article 15 of the
Utility Model Act, or the utility model has been registered and published under
Article 21 (3) of the Utility Model Act.
(5) For the purposes of paragraph (3), if a separate patent application is an
international patent application defined in Article 199 (2) (including an international
application deemed a patent application under Article 214 (4)), "specification or
drawings initially accompanying a separate patent application" in the main body of
paragraph (3) shall be construed as "specification, the claims, or drawings submitted
by the international application date," and "laid open" in subparagraph 2 of the
aforesaid paragraph as "laid open or published internationally under Article 21 of the
Patent Cooperation Treaty", respectively.
(6) For the purposes of paragraph (4), if an application for registration of a utility
model is an international application for registration of a utility model under Article
34 (2) of the Utility Model Act (including an international application deemed an
application for registration of a utility model under Article 40 (4) of the aforesaid
Act), "specification or drawings initially accompanying an application" in the main
body of paragraph (4) shall be construed as "specification, the claims, or drawings of
a design submitted by the international application date," and "laid open" in
subparagraph 2 of the aforesaid paragraph as “laid open or published internationally
under Article 21 of the Patent Cooperation Treaty”, respectively.
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(7) For the purposes of paragraph (3) or (4), no international patent application
deemed withdrawn under Article 201 (4) or an application for registration of a utility
model deemed withdrawn under Article 35 (4) of the Utility Model Act shall be
deemed either a separate patent application or another application for registration of
a utility model.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 30 (Inventions Not Deemed to be Publicly Known, etc.) (1) If any of the
following applies to a patentable invention, but a patent application is filed within 12
months from the relevant date, the invention shall not be deemed to fall under any
subparagraph of Article 29 (1), for the purposes of Article 29 (1) or (2):
1. When a person entitled to a patent has caused his/her invention to fall under any
subparagraph of Article 29 (1): Provided, That this shall not apply where the
relevant application has been laid open, or the patent has been registered and
published, in the Republic of Korea or in any foreign country under a treaty or an
Act;
2. When the invention falls under any subparagraph of Article 29 (1) contrary to the
will of the person entitled to a patent.
(2) A person who seeks to claim entitlement under paragraph (1) 1 shall file a
patent application to that effect and submit documents evidencing the relevant facts
to the Commissioner of KIPO within 30 days from the filing date of the patent
application in the manner prescribed by Ordinance of the Ministry of Trade, Industry,
and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 31 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 32 (Unpatentable Inventions)Notwithstanding Article 29 (1), no invention that
violates public order or sound morals, or is likely to harm public health is patentable.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 33 (Persons Entitled to Patent) (1) A person who makes an invention or his/her
successor shall be entitled to a patent under this Act: Provided, That no employee of
KIPO or KIPT is entitled to a patent while in service, except by inheritance or
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bequest.
(2) If at least two persons jointly make an invention, they are jointly entitled to a
patent thereon.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 34 (Patent Applications Filed by Unentitled Persons and Protection of Legitimate
Right-Holders)
If a patent application filed by a person who is not an inventor nor a successor to an
entitlement to a patent (hereinafter referred to as "unentitled person") falls under
subparagraph 2 of Article 62 on the ground that the person has no entitlement to a
patent under the main body of Article 33 (1) and no patent is granted to such person,
the patent application filed by a legitimate right-holder subsequent to the patent
application filed by the unentitled person shall be deemed filed on the date of filing of
the patent application by the entitled person: Provided, That the foregoing shall not
apply where the legitimate right-holder files a patent application 30 days after the
date on which the patent application filed by the unentitled person is rejected.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 35 (Patents Granted to Unentitled Persons and Protection of Legitimate Right-
Holders)
If a trial ruling invalidating a patent becomes final and conclusive on the ground of
the lack of the entitlement to the patent under the main body of Article 33 (1) as
provided for in Article 133 (1) 2, the patent application filed by the legitimate right-
holder subsequent to the patent application filed by the unentitled person shall be
deemed filed at the time the application for the invalidated patent is filed: Provided,
That the foregoing shall not apply where the legitimate right-holder files a patent
application two years after the date on which the patent is registered and published,
or 30 days after the date on which the trial ruling becomes final and conclusive.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 36 (First-to-File Rule) (1) Where at least two patent applications for an
identical invention are filed on different dates, only the applicant of the application
having the earlier filing date is entitled to a patent on the invention.
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(2) Where at least two patent applications for an identical invention are filed on the
same date, only the person agreed upon by all patent applicants may obtain a patent
on the invention: Provided, That if patent applicants fail to, or are unable to, reach
agreement, none of the patent applicants is entitled to a patent on the invention.
(3) Where an invention for which a patent application is filed, and a design for which
an application for registration of a utility model is filed are identical, paragraph (1)
shall apply mutatis mutandis if the applications are filed on different dates, but
paragraph (2) shall apply mutatis mutandis if they are filed on the same date.
(4) In either of the following cases, a patent application or application for
registration of a utility model shall be deemed never filed for the purposes of
paragraphs (1) through (3): Provided, That the foregoing shall not apply where a
decision or trial ruling to reject the patent application or application for registration
of a utility model as the proviso to paragraph (2) applies (including cases to which
the aforesaid proviso shall apply mutatis mutandis pursuant to paragraph (3))
becomes final and conclusive:
1. If the patent application or application for registration of a utility model is
abandoned, invalidated, or withdrawn;
2. If a decision or trial ruling to reject the patent application or application for
registration of a utility model becomes final and conclusive.
(5) For the purposes of paragraphs (1) through (3), a patent application or
application for registration of a utility model filed by a person who is not an inventor,
designer, nor the successor to an entitlement to the patent or the registration of the
utility model shall be deemed to have never been filed.
(6) In cases falling under paragraph (2), the Commissioner of KIPO shall order the
applicants to report the results of the agreement within the specified period, and the
applicants shall be deemed to fail to reach agreement under paragraph (2), if no
report is submitted within the period.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 37 (Transfer, etc. of Entitlement to Patent) (1) An entitlement to a patent may
be transferable.
(2) An entitlement to a patent shall not be pledged.
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(3) If an entitlement to a patent is jointly held by at least two persons, a joint patent
holder may transfer his/her share with the consent of each of joint patent holder.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 38 (Succession to Entitlement to Patent) (1) The successor to an entitlement
to a patent for which no patent application has been filed shall have no valid claim or
defense against a third party, unless the successor files a patent application.
(2) If at least two persons succeed to an entitlement to an identical patent from the
same person, and if at least two applications for the patent are filed on the same
date, the succession to the entitlement to the patent shall be effective only for the
person agreed upon by each patent applicant.
(3) If at least two persons succeed to an entitlement to a patent or the registration
of a utility model on an identical invention or design from the same person, and if at
least two applications for the patent or for registration of the utility model are filed
on the same date, the succession shall be effective only for the person agreed upon
by each applicant for the patent or for registration of the utility model.
(4) No succession to an entitlement to a patent for which a patent application has
been filed shall be effective, unless a report on amendment of the patent applicant is
filed, except for succession by inheritance or other universal succession.
(5) The successor to an entitlement to a patent by inheritance or other universal
succession shall notify the Commissioner of KIPO of the succession without delay.
(6) If at least two persons succeed to an entitlement to an identical patent from the
same person, and if at least two reports on amendment of the patent applicant are
filed on the same date regarding such entitlement, the report shall be effective only
for the person agreed upon by each person who has filed the reports.
(7) Article 36 (6) shall apply mutatis mutandis to cases falling under paragraphs (2),
(3), and (6).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 39 Deleted. <by Act No. 7869, Mar. 3, 2006>
Article 40 Deleted. <by Act No. 7869, Mar. 3, 2006>
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Article 41 (Inventions, etc. Necessary for National Defense) (1) The Government may
prohibit filing a patent application with a foreign patent office or may order an
inventor, applicant, or agent to keep confidential an invention for which a patent
application has been filed, if necessary for national defense: Provided, That a patent
application may be filed in a foreign country with prior permission from the
Government therefor.
(2) The Government may refuse to grant a patent, if an invention for which a patent
application has been filed is necessary for national defense and may expropriate the
entitlement to a patent for national defense during a war, an incident, or any similar
emergency.
(3) The Government shall pay reasonable compensation for losses incurred due to
prohibition against filing a patent application in a foreign country, or classification of
a patent application as confidential under paragraph (1).
(4) The Government shall pay reasonable compensation if it refuses to grant a
patent or expropriates the entitlement to a patent under paragraph (2).
(5) If a person violates an order prohibiting filing a patent application in a foreign
country or keeping a patent application confidential under paragraph (1), the person
shall be deemed to relinquish his/her entitlement to a patent on the relevant
invention.
(6) If a person violates an order prohibiting filing a patent application in a foreign
country or keeping a patent application as confidential under paragraph (1), the
person shall be deemed to relinquish his/her entitlement to claim compensation for
losses incurred due to prohibition against filing the patent application in a foreign
country, or classification of the patent application as confidential.
(7) Procedures for prohibiting filing a patent application in a foreign country, or for
classifying a patent application as confidential under paragraph (1), procedures for
expropriation and the payment of compensation therefor under paragraphs (2)
through (4), and other necessary matters shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 42 (Patent Applications) (1) A person who intends to obtain a patent shall file a
patent application stating the following information with the Commissioner of KIPO:
<Amended by Act No. 12753, Jun. 11, 2014>
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1. The name and domicile of the patent applicant (if the applicant is a corporation,
his/her name and place of business);
2. The name and the domicile or place of business of an agent, if the patent applicant
is represented by the agent (if the agent is a patent firm or limited-liability patent
firm, its name and place of business, and the name of the patent attorney
designated for the case);
3. The title of the invention;
4. The name and domicile of the inventor.
(2) A patent application filed under paragraph (1) shall be accompanied by a
specification containing the description of the invention and the claims, necessary
drawings, and an abstract. <Amended by Act No. 12753, Jun. 11, 2014>
(3) A description of an invention under paragraph (2) shall satisfy all of the
following requirements: <Amended by Act No. 12753, Jun. 11, 2014>
1. To clearly detail the invention in such manner that any person with ordinary
knowledge in the technical field of the relevant invention can easily practice the
invention;
2. To state the technology used for the invention.
(4) Claims referred to in paragraph (2) shall state at least a claim to be protected
(hereinafter referred to as "claim"), and each claim shall satisfy all of the following
requirements: <Amended by Act No. 12753, Jun. 11, 2014>
1. The invention shall be supported by the description;
2. The invention shall be clearly described in minute detail.
(5) Deleted. <by Act No. 12753, Jun. 11, 2014>
(6) Claims referred to in paragraph (2) shall state the structures, methods,
functions, and materials or combinations thereof deemed necessary for identifying
the invention in order to clarify the claims to be protected. <Amended by Act No.
12753, Jun. 11, 2014>
(7) Deleted. <by Act No. 12753, Jun. 11, 2014>
(8) Matters necessary for the methods of stating the claims under paragraph (2)
shall be prescribed by Presidential Decree. <Amended by Act No. 12753, Jun. 11,
2014>
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(9) Matters necessary for the methods of making the description, drawings, and an
abstract of an invention under paragraph (2) shall be prescribed by Ordinance of the
Ministry of Trade, Industry, and Energy. <Amended by Act No. 12753, Jun. 11,
2014>
Article 42-2 (Filing Date of Patent Application, etc.) (1) The date on which a patent
application, accompanied by a specification and necessary drawings, is submitted to
the Commissioner of KIPO shall be deemed the filing date of the patent application.
The claims may be omitted in the specification, but the description of the invention
must be stated in the specification in such cases.
(2) If a patent applicant fails to state the claims in the specification initially
accompanying a patent application under the latter part of paragraph (1), he/she shall
make an amendment to state the claims in the specification by not later than one year
and two months from the date specified in any subparagraph of Article 64 (1),
whichever is relevant: Provided, That upon receipt of a request for examination of
the application under Article 60 (3), the applicant shall make an amendment by not
later than three months from the date on which notice is served, or one year and two
months from the date specified in any subparagraph of Article 64 (1), whichever
comes earlier.
(3) If a patent applicant fails to make an amendment under paragraph (2), the
applicant shall be deemed to voluntarily withdraw the patent application on the date
immediately following the expiration of the period specified in paragraph (2).
[This Article Newly Inserted by Act No. 12753, Jun. 11, 2014]
Article 42-3 (Patent Applications in Foreign Language, etc.) (1) If a patent applicant
states his/her intention, in the patent application, to describe the specification and
drawings (limited to captions in drawings; the same shall apply hereafter in
paragraphs (2) and (5)) in a language specified by Ordinance of the Ministry of
Trade, Industry, and Energy, other than Korean language, he/she may use the
language.
(2) If the specification and drawings initially accompanying a patent application are
written and prepared in a language provided for in paragraph (1) (hereinafter
referred to as "patent application in a foreign language"), the patent applicant shall
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submit a Korean translation of the specification and drawings in the manner specified
by Ordinance of the Ministry of Trade, Industry, and Energy by not later than one
year and two months from the date specified in any subparagraph of Article 64 (1),
whichever is relevant: Provided, That upon receipt of a request for examination of
the application under Article 60 (3), the applicant shall submit a Korean translation
by not later than three months from the date on which notice is served, or one year
and two months from the date specified in any subparagraph of Article 64 (1),
whichever comes earlier.
(3) A patent applicant who has submitted a Korean translation under paragraph (2)
may submit another Korean translation in replacement of the former Korean
translation by not later than the expiration of the period specified in paragraph (2):
Provided, That the foregoing shall not apply in the following cases:
1. Where the patent applicant has amended the specification or a drawing (excluding
an amendment deemed made under paragraph (5));
2. Where the patent applicant has filed a request for examination of the application.
(4) If a patent applicant fails to submit a Korean translation of the specification
under paragraph (2), the applicant shall be deemed to voluntarily withdraw the patent
application on the date following the expiration of the period specified in paragraph
(2).
(5) If a patent applicant submits a Korean translation under paragraph (2) or
another Korean translation under the main body of paragraph (3), the specification
and drawings accompanying the initial patent application in a foreign language shall
be deemed amended according to the Korean translation: Provided, That if another
Korean translation is submitted under the main body of paragraph (3), all
amendments that shall otherwise be deemed amended according to Korean
translations submitted prior to the latest Korean translation (hereafter referred to as
"final Korean translation" in this Article and the latter part of Article 47 (2)) shall be
deemed never made.
(6) A patent applicant may correct any error in the final Korean translation in the
manner prescribed by Ordinance of the Ministry of Trade, Industry, and Energy
during the period set for amendments under Article 47 (1). In such cases, paragraph
(5) shall not apply to the corrected Korean translation.
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[This Article Newly Inserted by Act No. 12753, Jun. 11, 2014]
Article 43 (Abstract)
An abstract referred to in Article 42 (2) shall be used only for technical information,
and shall not define the scope of the invention for which protection is sought.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 44 (Joint Applications)
Where the entitlement to a patent is jointly held by at least two persons, all entitled
persons shall jointly file a patent application.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 45 (Scope of Single Patent Application) (1) A patent application shall be filed
only for one invention: Provided, That a patent application may be filed for a group of
inventions linked so as to form a single general inventive concept.
(2) The requirements for filing a patent application for a group of inventions under
the proviso to paragraph (1) shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 46 (Procedural Amendments)
The Commissioner of KIPO or the President of KIPT shall order a relevant person to
amend a patent-related procedure within the specified period if any of the following
applies. Upon receipt of such order, the person may submit a written statement on
the order to the Commissioner of KIPO or the President of KIPT during the period:
1. Where the person violates Article 3 (1) or 6;
2. Where the person violates any formality specified in this Act or any order issued
thereunder;
3. Where the person fails to pay any fee required under Article 82.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 47 (Amendments to Patent Applications) (1) A patent applicant may amend the
specification or any drawing accompanying his/her patent application before a
certified copy of a decision to grant a patent under Article 66 is served: Provided,
That the patent applicant may make an amendment during the following applicable
period (referring to the time in cases falling under subparagraph 3), if he/she has
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already received notice of the ground for rejection under Article 63 (1) (hereinafter
referred to as "notice of the ground for rejection"):
1. Where he/she has first received notice of the ground for rejection (excluding
notice of the ground for rejection regarding the ground for rejection which has
arisen in connection with the amendment made following any earlier notice of the
ground for rejection) or notice of the ground for rejection that does not constitute
notice of the ground for rejection under subparagraph 2: The period set for
submitting a written statement in the notice of the ground for rejection;
2. Where he/she has received notice of the ground for rejection regarding the
ground for rejection which has arisen in connection with the amendment made
following any earlier notice of the ground for rejection: The period set for
submitting a written statement in the notice of the ground for rejection;
3. Where he/she files a request for re-examination under Article 67-2: The time
the request is filed.
(2) An amendment to the specification or drawings under paragraph (1) shall be
made within the scope of the features described in the specification or drawings
accompanying the initial patent application. An amendment to a patent application in a
foreign language shall be made also within the scope of the features described in the
final Korean translation (referring to the corrected Korean translation, if a correction
is made under the former part of Article 42-3 (6)) or in the drawings (excluding
captions in the drawings) accompanying the initial patent application.
(3) An amendment to the claims, among amendments made under paragraph (1) 2
and 3, may be made only in the following cases:
1. Where the claims is reduced by limiting, deleting, or adding claims;
2. Where any clerical error is rectified;
3. Where any ambiguous description is clarified;
4. Where an amendment is made regarding an earlier amendment that exceeds the
claims under paragraph (1) to reinstate the claims prior to the amendment, or to
reinstate the claims prior to the amendment and to simultaneously amend the
claims under subparagraphs 1 through 3.
(4) Where a patent application is amended during the period specified in paragraph
(1) 1 or 2, all amendments made at each stage of amendment prior to the final
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amendment shall be deemed voluntarily withdrawn.
(5) Notwithstanding the main body of paragraph (1), the specification or drawings of
a patent application in a foreign language may be amended only where a Korean
translation has been submitted under Article 42-3 (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 48 Deleted. <by Act No. 6411, Feb. 3, 2001>
Article 49 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 50 Deleted. <by Act No. 5329, Apr. 10, 1997>
Article 51 (Rejection of Amendments) (1) If an examiner finds that an amendment
made under Article 47 (1) 2 or 3 violates paragraph (2) or (3) of the same Article,
or that another ground for rejection arises due to such amendment (excluding an
amendment to delete a claim among amendments made under paragraph (3) 1 or 4 of
the same Article), he/she shall determine to reject the amendment: Provided, That
the foregoing shall not apply where an amendment made before filing a request for
re-examination under Article 67-2.
(2) A determination to reject an amendment under paragraph (1) shall be made in
writing, stating the grounds therefor.
(3) No appeal shall be permitted against a determination to reject an amendment
under paragraph (1): Provided, That the foregoing shall not apply where a
determination to reject an amendment (excluding a determination to reject an
amendment prior to filing a request for re-examination under Article 67-2) is
contested in a trial on the ruling to reject the claim of a patent under Article 132-3.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 52 (Divisional Patent Applications) (1) An applicant who has filed a single
patent application for at least two inventions may divide the application into at least
two applications within the scope of the features described in the specification or
drawings accompanying the initial patent application, within either of the following
periods: Provided, That if such patent application has been filed in a foreign
language, it may be divided only where the patent application has been accompanied
by the Korean translation required under Article 42-3 (2):
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1. A period during which amendments can be made under Article 47 (1);
2. A period not exceeding 30 days from the date a certified copy of the ruling to
reject the claim of a patent is served (referring to an extension, if the period
specified in Article 132-3 has been extended under Article 15 (1)).
(2) A patent application divided under paragraph (1) (hereinafter referred to as
"divisional application") shall be deemed filed at the time the initial patent application
was filed: Provided, That a divisional application shall be deemed filed at the time the
divisional application is filed in any of the following cases:
1. Where the divisional application constitutes a separate patent application referred
to in Article 29 (3) of this Act or a patent application referred to in Article 4 (4)
of the Utility Model Act, and Article 29 (3) of this Act or Article 4 (4) of the Utility
Model Act shall apply to the divisional application;
2. Where Article 30 (2) applies to the divisional application;
3. Where Article 54 (3) applies to the divisional application;
4. Where Article 55 (2) applies to the divisional application.
(3) A person who intends to file a divisional application under paragraph (1) shall
state his/her intention and indicate the patent application to be divided in the
divisional patent applications.
(4) A person who claims priority under Article 54 for a divisional application may
submit the documents specified in paragraph (4) of the aforesaid Article to the
Commissioner of KIPO within three months from the filing date of the divisional
application, even after the expiration of the period specified in paragraph (5) of the
aforesaid Article.
(5) If a divisional application is filed in a foreign language, the patent applicant can
submit a Korean translation under Article 42-3 (2) or another Korean translation
referred to in the main body of Article 42-3 (3) by not later than 30 days from the
filing date of the divisional application, even after the expiration of the period
specified in paragraph (2) of the aforesaid Article: Provided, That a Korean
translation can be omitted in cases specified in any subparagraph of Article 42-3
(3).
(6) If a divisional application has been filed regarding a patent application filed
without stating the claims in the specification accompanying the initial patent
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application, the patent applicant may make an amendment to state the claims in the
specification by not later than 30 days from the filing date of the divisional
application, even after the expiration of the period specified in Article 42-2 (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 53 (Conversion of Applications) (1) An applicant for registration of a utility
model may convert the application for registration of the utility model into a patent
application within the scope of the features described in the specification or drawings
accompanying the initial application for registration of the utility model: Provided,
That the foregoing shall not apply in the following cases: <Amended by Act No.
12753, Jun. 11, 2014>
1. Where 30 days (referring to an extension, if the period specified in Article 132-3
has been extended under Article 15 (1), which shall apply mutatis mutandis
pursuant to Article 3 of the Utility Model Act) have passed since the date on which
a certified copy of the initial ruling to reject the application to register the utility
model was served;
2. Where the application for registration of the utility model has been filed in a
foreign language under Article 8-3 (2) of the Utility Model Act, and the Korean
translation required under the aforesaid paragraph has not be submitted along with
the application filed for conversion.
(2) An application converted into a patent application under paragraph (1)
(hereinafter referred to as "converted application") shall be deemed filed at the time
the application for registration of the utility model was filed: Provided, That the
foregoing shall not apply in the following cases: <Amended by Act No. 12753, Jun.
11, 2014>
1. Where Article 29 (3) of this Act, or Article 4 (4) of the Utility Model Act applies
to the converted application as it constitutes a separate patent application referred
to in Article 29 (3) of this Act, or a patent application under Article 4 (4) of the
Utility Model Act;
2. Where Article 30 (2) applies to the converted application;
3. Where Article 54 (3) applies to the converted application;
4. Where Article 55 (2) applies to the converted application.
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(3) A person who intends to file a converted application under paragraph (1) shall
state his/her intention and indicate the application for registration of the utility model
to be converted in the patent application. <Amended by Act No. 12753, Jun. 11,
2014>
(4) When a converted application is filed, the application for registration of the
utility model shall be deemed withdrawn. <Amended by Act No. 12753, Jun. 11,
2014>
(5) Deleted. <by Act No. 12753, Jun. 11, 2014>
(6) A person who claims priority under Article 54 for a converted application may
submit the documents specified in paragraph (4) of the aforesaid Article to the
Commissioner of KIPO within three months from the filing date of the converted
application, even after the expiration of the period specified in paragraph (5) of the
aforesaid Article. <Amended by Act No. 11654, Mar. 22, 2013>
(7) If a converted application is filed in a foreign language, the patent applicant can
submit the Korean translation under Article 42-3 (2) or another Korean translation
referred to in the main body of Article 42-3 (3) by not later than 30 days from the
filing date of the converted application, even after the expiration of the period
specified in paragraph (2) of the aforesaid Article: Provided, That a Korean
translation may be omitted in cases specified in any subparagraph of Article 42-3
(3). <Newly Inserted by Act No. 12753, Jun. 11, 2014>
(8) If a converted application has been filed regarding a patent application filed
without stating the claims in the specification accompanying the initial converted
application, the patent applicant may make an amendment to state the claims in the
specification by not later than 30 days from the filing date of the converted
application, even after the expiration of the period specified in Article 42-2 (2).
<Newly Inserted by Act No. 12753, Jun. 11, 2014>
[This Article Wholly Amended by Act No. 7871, Mar. 3, 2006]
Article 54 (Priority Claims Under Treaty) (1) Where any of the following applies under
a treaty, the filing date of a patent application in the relevant foreign country shall be
deemed the filing date of the patent application in the Republic of Korea for purposes
of Article 29 or 36:
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1. Where a citizen of a foreign country that recognizes the priority of citizens of the
Republic of Korea for a patent application files a patent application for an invention
after filing a patent application in the foreign country or in another foreign country
for the same invention and claims priority;
2. Where a citizen of the Republic of Korea files a patent application in the Republic
of Korea after filing a patent application for the same invention in a foreign country
that recognizes the priority of citizens of the Republic of Korea for a patent
application and claims priority.
(2) No person who intends to claim priority under paragraph (1) shall claim priority,
unless he/she files a patent application within one year from the filing date of the
initial application on which the priority claim is based.
(3) A person who intends to claim priority under paragraph (1) shall state his/her
intention, the name of the country in which the application was initially filed, and the
filing date of the application in the patent application that he/she files in the Republic
of Korea.
(4) A person who claims priority under paragraph (3) shall submit the documents
specified in subparagraph 1 or the written statement specified in subparagraph 2 to
the Commissioner of KIPO: Provided, That the written statement specified in
subparagraph 2 may be submitted only if the relevant foreign country is one of the
countries specified by Ordinance of the Ministry of Trade, Industry, and Energy:
1. A written statement with the filing date of the patent application initially filed with
the government of the foreign country, certified copies of the specification and
drawings of the relevant invention, which have been certified by the government of
the foreign country;
2. A written statement with the file number of the patent application initially filed in
the foreign country, the information with which the filed application can be verified,
and other matters specified by Ordinance of the Ministry of Trade, Industry, and
Energy.
(5) Documents or written statements referred to in paragraph (4) shall be submitted
within one year and four months from the earliest among the following dates:
1. The initial filing date of the application in a country that is a party to a treaty;
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2. The filing date of the application on which the priority claim is based, where a
patent application contains a priority claim under Article 55 (1);
3. The filing date of the application on which the priority claim is based, where a
patent application contains a priority claim under paragraph (3).
(6) If a person who claims priority under paragraph (3) fails to submit the
documents required under paragraph (4) within the period specified in paragraph
(5), the priority claim shall become void.
(7) A person who claims priority under paragraph (1) and meets the requirements
under paragraph (2) may amend or add a priority claim within one year and four
months from the earliest date specified in paragraph (5).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 55 (Priority Claims Based on Patent Applications, etc.) (1) A person who
intends to obtain a patent may claim priority on the invention described in the
specification or drawings initially accompanying a separate application filed earlier
(hereinafter referred to as "earlier application") for a patent or for registration of a
utility model, on which he/she is entitled to the patent or registration of a utility
model: Provided, That the foregoing shall not apply in the following cases:
1. Where the relevant patent application is filed one year after the filing date of the
earlier application;
2. Where the earlier application is a divisional application defined under Article 52
(2) (including cases to which the aforesaid provisions apply mutatis mutandis
pursuant to Article 11 of the Utility Model Act) or a converted application defined
under Article 53 (2) of this Act or Article 10 (2) of the Utility Model Act;
3. Where the earlier application has been abandoned, invalidated, or withdrawn at
the time the relevant patent application is filed;
4. Where a trial ruling on whether to grant or refuse a patent for the earlier
application or on whether to accept or refuse the earlier application for registration
of a utility model becomes final and conclusive before the relevant patent
application is filed.
(2) A person who intends to claim priority under paragraph (1) shall state his/her
intention and indicate the earlier application in the patent application subsequently
filed.
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(3) In applying Article 29 (1) and (2), the main bodies of Article 29 (3) and (4),
Articles 30 (1), 36 (1) through (3), 96 (1) 3, 98, 103, 105 (1) and (2), 129, and
136 (4) of this Act (including cases to which the aforesaid provisions shall apply
mutatis mutandis pursuant to Article 133-2 (4)), Articles 7 (3) and (4), and 25 of
the Utility Model Act, Articles 95 and 103 (3) of the Design Protection Act to the
same invention as described in the specification or drawings initially accompanying
the earlier application claiming the relevant priority, among inventions described in a
patent application claiming priority under paragraph (1), the patent application filed
subsequently shall be deemed to have been filed at the time the earlier application
was filed.
(4) The main body of Article 29 (3) or (4) of this Act or the main body of Article 4
(3) or (4) of the Utility Model Act shall apply to an invention identical to the
invention described in the specification or drawings initially accompanying the earlier
application claiming the relevant priority, among inventions described in the
specification or drawings accompanying the initial patent application claiming priority
under paragraph (1), deeming that the earlier application claiming the priority is laid
open at the time the relevant patent application is laid open or the patent is
registered and published.
(5) In either of the following cases, paragraphs (3) and (4) shall not apply to an
invention described in the specification or drawings initially accompanying the earlier
application claiming priority, among inventions described in the specification or
drawings initially accompanying the earlier application:
1. Where the earlier application contains a priority claim under paragraph (1);
2. Where the earlier application contains a priority claim under Article 4-D (1) of
the Paris Convention for the Protection of Industrial Property.
(6) For the purposes of paragraph (4), Article 29 (7) shall not apply even where
the earlier application falls under either of the following:
1. Where the earlier application is an international patent application deemed
voluntarily withdrawn under Article 201 (4);
2. Where the earlier application is an international application for registration of a
utility model deemed voluntarily withdrawn under Article 35 (4) of the Utility
Model Act.
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(7) A person who meets the requirements under paragraph (1) and claims priority
may amend or add the priority claim within one year and four months from the filing
date of the earlier application (referring to the earliest filing date, if at least two
earlier applications have been filed).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 56 (Withdrawal, etc. of Earlier Applications) (1) The earlier application claiming
priority under Article 55 (1) shall be deemed withdrawn at the time one year and
three months elapse from the filing date of the earlier application: Provided, That the
foregoing shall not apply the following cases:
1. Where the earlier application has been abandoned, invalidated, or withdrawn;
2. Where a trial ruling on whether to grant or refuse a patent, on whether to accept
or refuse the registration of a utility model has become final and conclusive;
3. Where the priority claim based on the earlier application has been withdrawn.
(2) No applicant for a patent application claiming priority under Article 55 (1) shall
withdraw the priority claim upon expiration of one year and three months from the
filing date of the earlier application.
(3) If a patent application claiming priority under Article 55 (1) is withdrawn within
one year and three months from the filing date of the earlier application, the priority
claim shall be deemed withdrawn simultaneously.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER III EXAMINATIONS
Article 57 (Examinations by Examiners) (1) The Commissioner of KIPO shall authorize
examiners to examine patent applications.
(2) Matters necessary for qualification as examiners shall be prescribed by
Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 58 (Designation, etc. of Specialized Agencies) (1) If the Commissioner of
KIPO deems it necessary for a patent applicant to file a patent application, or for
examining patent applications (including international investigations and international
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preliminary examinations with regard to international applications), he/she may
designate a specialized agency to conduct affairs specified by Presidential Decree,
including donation and distribution of microorganisms, searches for prior art, and the
issuance of patent classification codes.
(2) If the Commissioner of KIPO deems it necessary for examining a patent
application, he/she may request cooperation, or seek advice from, a related
administrative agency, organization specializing in the relevant technical field, or
expert having abundant knowledge and experience in patents. In such cases, the
Commissioner of KIPO may pay them allowances or reimburse them for expenses,
within budgetary limits.
(3) Standards for the designation of specialized agencies, and matters necessary for
requesting searcher for prior art, or issuing patent classification codes under
paragraph (1) shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 58-2 (Revocation of Designation of Specialized Agencies, etc.) (1) If a
specialized agency under Article 58 (1) falls under subparagraph 1, the
Commissioner of KIPO shall revoke the designation of the specialized agency, while
he/she may revoke the designation of the specialized agency or may order it to
completely or partially suspend its business operations for a specified period not
exceeding six months, if it falls under subparagraph 2:
1. If the specialized agency has obtained designation by fraudulent or other illegal
means;
2. If the specialized agency fails to meet the standards for designation under Article
58 (3).
(2) The Commissioner of KIPO shall hold a hearing before revoking the designation
of a specialized agency or orders the suspension of business operations under
paragraph (1).
(3) Detailed guidelines and procedures for the dispositions referred to in paragraph
(1), and other necessary matters shall be prescribed by Ordinance of the Ministry of
Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 59 (Requests for Examinations of Patent Applications) (1) A patent application
shall be examined only upon receipt of a request for examination.
(2) Any person may file a request for examination of a patent application with the
Commissioner of KIPO within five years from the filing date of the patent application:
Provided, That no patent applicant shall file a request for examination of the patent
application in either of the following cases:
1. If the patent applicant fails to state the claims in the specification;
2. If the patent applicant fails to submit a Korean translation under Article 42-3 (2)
(limited to patent applications filed in a foreign language).
(3) A legitimate right-holder who has filed a patent application, divisional
application, or converted application under Article 34 or 35 may file a request for
examination of the application within 30 days from the filing date of the patent
application, divisional application, or converted application, even after the expiration
of the period specified in paragraph (2).
(4) No request for examination of an application shall be withdrawn.
(5) If no request for examination of an application is filed during the period set for
filing a request for examination of the application under paragraph (2) or (3), the
patent application shall be deemed withdrawn.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 60 (Procedure for Requesting Examinations) (1) A person who intends to
request examination of an application shall submit a written request for examination
of the application to the Commissioner of KIPO, stating the following:
1. The name and domicile of the requesting person (if the requesting person is a
corporation, his/her name and place of business);
2. A description of the patent application for which the request for examination is
filed.
(2) If a request for examination of an application is filed before the application is
laid open, the Commissioner of KIPO shall publish relevant facts in the Patent
Gazette when the application is laid open, whereas he/she shall publish relevant facts
in the Patent Gazette without delay, if such request is filed after the application is
laid open.
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(3) Upon receipt of an application for examination of an application from any person
other than the relevant patent applicant, the Commissioner of KIPO shall notify the
patent applicant of such facts.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 61 (Expedited Examinations)
In either of the following cases, the Commissioner of KIPO may instruct an examiner
to examine a patent application in preference to other patent applications:
1. Where it is found that any person, other than the patent applicant, is commercially
or industrially working the invention claimed in the patent application after it is laid
open under Article 64;
2. Where it is deemed necessary to urgently process a patent application specified
by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 62 (Determinations to Reject Patent Applications)
An examiner shall determine to reject a patent application if the patent application
falls under any of the following grounds for rejection (hereinafter referred to as
"grounds for rejection"):
1. If an invention is unpatentable under any provision of Articles 25, 29, 32, 36 (1)
through (3), and 44;
2. If the applicant is unentitled to a patent under the main body of Article 33 (1) or
is unentitled to a patent under the proviso to the aforesaid paragraph;
3. If the patent application violates a treaty;
4. If the patent application fails to meet any of the requirements prescribed by
Article 42 (3), (4), or (8) or Article 45;
5. If an amendment to the patent application exceeds the scope described in Article
47 (2);
6. If the patent application is a divisional application that exceeds the scope
described in Article 52 (1);
7. If the patent application is a converted application that exceeds the scope
described in Article 53 (1).
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 63 (Notice of Grounds for Rejection) (1) When an examiner intends to
determine to reject a patent application under Article 62, he/she shall notify the
applicant of the grounds for rejection and provide the applicant with an opportunity to
submit written arguments within a specified period: Provided, That the foregoing
shall not apply where an examiner intends to determine to reject an amendment
under Article 51 (1).
(2) When an examiner notifies an applicant of the ground for rejection of a patent
application containing at least two claims in the claims prescribed under the main
body of paragraph (1), he/she shall clearly state the rejected claims in the notice,
and specify the grounds for rejection of such claims.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 63-2 (Provision of Information about Patent Applications)
Any person may provide the Commissioner of KIPO with information that a patent
application is ineligible for a patent as it falls under a ground for rejection, along with
evidentiary documents: Provided, That the foregoing shall not apply where the patent
application fails to meet any of the requirements prescribed under Articles 42 (3) 2
and (8) and Article 45.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 64 (Laying-Open of Applications) (1) The Commissioner of KIPO shall publish
a patent application in the Patent Gazette to lay it open, as prescribed by Ordinance
of the Ministry of Trade, Industry, and Energy, after the lapse of one year and six
months from the date specified in any of the following, or upon receipt of a request
from the patent applicant even before the lapse of such period:
1. A patent application claiming priority under Article 54 (1): The filing date of the
application claiming the priority;
2. A patent application claiming priority under Article 55 (1): The filing date of the
earlier application;
3. A patent application containing at least two priority claims under Article 54 (1) or
55 (1): The earliest date among the filing dates of the applications on which the
priority claims are based;
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4. A patent application that does not fall under any of subparagraphs 1 through 3:
The filing date of the patent application.
(2) Notwithstanding paragraph (1), no patent application shall be laid open in any of
the following cases:
1. If the applicant fails to state the scope of claims in the specification;
2. If the applicant fails to submit a Korean translation under Article 42-3 (2)
(limited to patent applications in a foreign language);
3. If the patent has been registered and published under Article 87 (3).
(3) If the invention claimed in a patent application shall be kept confidential under
Article 41 (1), the patent application shall not be laid open until the invention is
released from confidentiality, but shall be laid open under paragraph (1) without
delay when the invention is released from confidentiality: Provided, That no patent
application shall be laid open, if the grant of the patent claimed in the patent
application has been registered.
(4) Matters that shall be published in the Patent Gazette regarding the laying-open
of applications under paragraph (1), including the name and domicile of an applicant
and the application number, shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 65 (Effects of Laying-Open of Applications) (1) After a patent application is
laid open, the applicant may give a person who has commercially or industrially
worked the invention claimed in the application, a written warning stating that a
patent application has been filed for the invention.
(2) A patent applicant may claim compensation equivalent to an amount to which
he/she is ordinarily entitled for working the patented invention, from a person who
has commercially or industrially worked the invention claimed in the patent
application, after receipt of a written warning given under paragraph (1), or knowing
that the patent application for the invention has been laid open under Article 64, for
the period from the time of the written warning, or the time he/she becomes aware
thereof until the time the grant of the patent is registered.
(3) The right to claim compensation under paragraph (2) may be exercised only
after the grant of the patent on the invention claimed in the patent application is
registered.
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(4) The exercise of the right to claim compensation under paragraph (2) shall not
affect the working of the patent.
(5) Articles 127, 129, and 132 of this Act and Articles 760 and 766 of the Civil Act
shall apply mutatis mutandis to the exercise of the right to claim compensation under
paragraph (2). In such cases, "date on which the injured party or his/her legal
representative becomes aware of damage and of the identity of the person who has
inflicted the damage" in Article 766 (1) of the Civil Act shall be construed as "date
on which the grant of the patent right is registered."
(6) If any of the following applies to a patent application after it has been laid open
under Article 64, the right to claim compensation under paragraph (2) shall be
deemed never arisen:
1. If the patent application is abandoned, invalidated, or withdrawn;
2. If a determination to reject the patent application under Article 62 becomes final
and conclusive;
3. If a trial ruling invalidating the relevant patent under Article 133 (excluding cases
specified in Article 133 (1) 4) becomes final and conclusive.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 66 (Determination to Grant Patent)
If an examiner finds no ground to reject a patent application, he/she shall determine
to grant a patent.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 66-2 (Ex Officio Amendments, etc.) (1) If an examiner finds an obvious
clerical error in the specification, drawings, or abstract accompanying a patent
application, he/she may rectify such clerical error ex officio (hereinafter referred to
as "ex officio amendment") when deciding to grant a patent thereon under Article 66.
(2) When an examiner makes an ex officio amendment under paragraph (1), he/she
shall notify the patent applicant of the ex officio amendment when serving a certified
copy of the decision to grant the patent on the patent applicant under Article 67 (2).
(3) If a patent applicant will not accept all or some of an ex officio amendment,
he/she shall submit a written argument thereon to the Commissioner of KIPO before
paying patent fees under Article 79 (1).
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(4) If a patent applicant submits a written argument under paragraph (3), all or
some of the ex officio amendment shall be deemed never to have existed.
(5) If an ex officio amendment is made to any matter, other than an obvious clerical
error, the ex officio amendment shall be deemed never made.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 67 (Formalities for Decision on Patentability) (1) A decision to either grant or
reject a patent application (hereinafter referred to as "decision on patentability")
shall be made in writing stating the grounds therefor.
(2) When a decision on patentability is made, the Commissioner of KIPO shall serve
a certified copy of the decision on the patent applicant.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 67-2 (Requests for Re-Examinations) (1) A patent applicant may file a
request to re-examine his/her patent application (hereinafter referred to as "re-
examination") after amending the specification or drawings of the patent application
within 30 days (referring to an extension, if the period specified in Article 132-3 is
extended under Article 15 (1)) after receipt of a certified copy of the decision to
reject the patent application: Provided, That the foregoing shall not apply where a
decision to reject the patent application has already been made after re-examination
or a petition for trial has been filed under Article 132-3.
(2) A patent applicant may submit a written argument when filing a request for re-
examination under paragraph (1).
(3) If a request for re-examination is filed under paragraph (1), the previous
decision to reject the patent application shall be deemed revoked: Provided, That the
foregoing shall not apply where the procedure for filing the request for re-
examination becomes invalid under Article 16 (1).
(4) No request for re-examination under paragraph (1) shall be withdrawn.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 67-3 (Restoration of Patent Application) (1) If it is recognized that a patent
application has been withdrawn or a decision to refuse a patent has become final and
conclusive because of the patent applicant’s failure to comply with any of the
following time limits due to a cause not imputable to the patent applicant, the patent
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applicant may request the examination or re-examination of the patent application
within two months from the date on which such cause ceases to exist: Provided, That
this shall not apply where one year has elapsed since such period expired:
1. The period during which a request for the examination of a patent application may
be filed pursuant to Article 59 (2) or (3);
2. The period during which a request for the re-examination may be filed pursuant
to Article 67-2 (1).
(2) Notwithstanding Article 59 (5), if a request for the examination or re-
examination of a patent application is filed pursuant to paragraph (1), the patent
application shall be deemed not to have been withdrawn or the decision to refuse a
patent not to have become final and conclusive.
[This Article Newly Inserted by Act No. 11654, Mar. 22, 2013]
Article 68 (Application Mutatis Mutandis of Provisions concerning Trials to Examination)
Subparagraphs 1 through 5 and 7 of Article 148 shall apply mutatis mutandis to
examination of patent applications.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 69 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 70 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 71 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 72 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 73 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 74 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 75 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 76 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 77 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 78 (Suspension of Examination or Litigation Procedures) (1) The examination
procedure may be suspended until a trial ruling becomes final and conclusive or until
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the relevant legal proceedings are complete, if necessary for examining a patent
application.
(2) If necessary, a court may suspend the legal proceedings until a decision on
patentability of a patent application becomes final and conclusive.
(3) No appeal may be filed against suspension under paragraph (1) or (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 78-2 Deleted. <by Act No. 7871, Mar. 3, 2006>
CHAPTER IV PATENT FEES, PATENT REGISTRATIONS, ETC.
Article 79 (Patent Fees) (1) A person who intends to obtain grant of a patent
registered under Article 87 (1) shall pay patent fees for three years from the date
on which he/she intends to obtain grant of the patent registered (hereinafter referred
to as "registration date of grant"), and a patentee shall pay patent annuities each year
for subsequent years, based on the anniversary of the registration date of grant of
the relevant right.
(2) Notwithstanding paragraph (1), a patentee may pay patent fees for several or all
years in the order of consecutive payment years in lump sum.
(3) Patent fees payable under paragraphs (1) and (2), the methods of, and deadline
for the payment thereof, and other necessary matters shall be prescribed by
Ordinance of the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 80 (Payment of Patent Fees by Interested Party) (1) Any interested party may
pay patent fees, regardless of the wishes of a person liable to pay the patent fees.
(2) An interested party who has paid patent fees under paragraph (1) may claim the
reimbursement of the expenses against the person liable to pay the patent fees up to
the extent that the person liable to pay the patent fees currently gain benefits
through the patent.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 81 (Late Payment, etc. of Patent Fees) (1) A person who intends to obtain
grant of a patent registered or a patentee may make late payment of a patent fee
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within six months upon expiration of the period for payment specified in Article 79
(3) (hereinafter referred to as "period for late payment").
(2) In cases of late payment of a patent fee under paragraph (1), an amount
specified by Ordinance of the Ministry of Trade, Industry, and Energy shall be paid,
which shall not exceed double the amount of the patent fee originally due.
(3) If a person who intends to obtain grant of a patent registered fails to pay a
patent fee (referring to where a person fails to pay an under-paid patent fee during
the period for payment, if the period for late payment has expired, but the period for
payment of an under-paid patent fee under Article 81-2 (2) has not expired), the
person shall be deemed to abandon the patent application, and the patent granted to
the patentee shall be deemed to have expired retroactively on the day immediately
following the expiration of the period for which patent fees were paid under Article
79 (1) or (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 81-2 (Payment of Under-Paid Patent Fees) (1) If a person who intends to
obtain grant of a patent registered or a patentee fails to fully pay a patent fee within
the period specified in Article 79 (3) or 81 (1), the Commissioner of KIPO shall
order the person or patentee to pay the under-paid patent fee.
(2) Upon receipt of an order issued under paragraph (1), a person may pay an
under-paid patent fee within one month after receipt of such order (hereinafter
referred to as "period for payment of under-paid patent fees").
(3) A person who shall pay an under-paid patent fee under paragraph (2) shall pay
an amount specified by Ordinance of the Ministry of Trade, Industry, and Energy,
which shall not exceed double the amount of the unpaid patent fee.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 81-3 (Reinstatement, etc. of Patent Applications or Patents by Making Late
Payment of Patent Fees or Payment of Under-Paid Patent Fees) (1) If a person
who intends to obtain grant of a patent registered or a patentee fails to pay a patent
fee during the period for late payment or fails to pay an under-paid patent fee during
the period for payment of the under-paid patent fee, due to a cause not attributable
to him/her, the person may pay the patent fee or under-paid patent fee within two
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months from the date on which the cause ceases to exist: Provided, That the
foregoing shall not apply if one year has elapsed since the expiration of the period
for late payment or for payment of the under-paid patent fee, whichever occurs
later.
(2) Notwithstanding Article 81 (3), a person who has paid a patent fee or under-
paid patent fee pursuant to paragraph (1) shall be deemed not to have abandoned the
patent application, and the patent shall be deemed to survive.
(3) If the patent on an invention has expired due to a patentee's failure to pay a
patent fee during the period for late payment or an under-paid patent fee during the
period for payment of the under-paid patent fee, the patentee may pay double the
patent fee payable under Article 79 within three months from the expiration of the
period for late payment or the period for payment of the under-paid patent fee, and
files an application for reinstating the expired right. In such cases, the patent shall be
deemed to survive.
(4) No patent application or patent referred to in paragraph (2) or (3) shall affect
any third person's working of the invention claimed in the patent application or the
patented invention during the period following the expiration of the period for late
payment or the period for payment of a deficiency until the date on which the
overdue patent fee or deficiency is paid (hereafter referred to as "period of limited
effect" in this Article).
(5) A person who commercially or industrially works, or prepares to work, an
invention claimed in a patent application or a patented invention under paragraph (2)
or (3) in good faith in the Republic of Korea during a period of limited effect shall
have a non-exclusive license over the invention claimed in the patent application
within the scope of objectives of the patented invention that the person works or
prepares to work or objectives of the business.
(6) A non-exclusive license holder prescribed under paragraph (5) shall pay
equitable remuneration to the patentee or exclusive licensee.
(7) Matters necessary for making late payment or payment of an under-paid patent
fee under the main body of paragraph (1) or for filing applications under the main
body of paragraph (3) shall be prescribed by Ordinance of the Ministry of Trade,
Industry, and Energy.
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 82 (Official Fees) (1) Each person who initiates a patent-related procedure
shall pay official fees.
(2) If the number of claims is increased by amending the specification accompanying
a patent application after a person, other than the applicant, files a request for
examination of the application, the applicant shall pay the fees payable for the
request for examination of the increased claims.
(3) Official fees referred to in paragraph (1), the methods of, and deadline for the
payment thereof, and other necessary matters shall be prescribed by Ordinance of
the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 83 (Exemption or Reduction of Patent Fees or Official Fees) (1)
Notwithstanding Articles 79 and 82, the Commissioner of KIPO shall exempt the
payment of following patent fees or official fees:
1. Official fees or patent fees for a patent application or patent that belongs to the
State;
2. Official fees for a petition for an administrative trial on an examiner's invalidation
under Article 133 (1), 134 (1) or (2), or 137 (1).
(2) Notwithstanding Articles 79 and 82, the Commissioner of KIPO may reduce or
exempt the payment of the patent fees and official fees specified by Ordinance of the
Ministry of Trade, Industry, and Energy to a person eligible for assistance under
Article 5 of the National Basic Living Security Act or a person specified by
Ordinance of the Ministry of Trade, Industry, and Energy for patent applications, or
patents granted following patent applications, filed by such persons.
(3) A person who seeks the benefit of reduction or exemption of patent fees or
official fees under paragraph (2) shall submit documents specified by Ordinance of
the Ministry of Trade, Industry, and Energy to the Commissioner of KIPO.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 84 (Refunds of Patent Fees, etc.) (1) Patent fees or official fees paid shall be
refunded only in any of the following cases at the payer’s request:
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1. Patent fees or official fees paid erroneously;
2. Portions of patent fees for the years subsequent to the year in which a trial ruling
invalidating the patent becomes final and conclusive;
3. Portions of patent fees for the years subsequent to the year in which a trial ruling
invalidating registration of patent term extension becomes final and conclusive;
4. Official fees for filing a patent application, a request for examination, or filing a
priority claim for a patent application, out of the official fees paid where the patent
application is voluntarily withdrawn or abandoned within one year after filing the
patent application (excluding a divisional application, converted application, or
patent application for which a request for expedited examination has been filed
under Article 61).
(2) If any subparagraph of paragraph (1) applies to a patent fee or official fee paid,
the Commissioner of KIPO shall give notice thereof to the relevant payer.
(3) No claim for refund of a patent fee or official fee referred to in paragraph (1)
may be filed after three years from the date on which a person receives notice under
paragraph (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 85 (Patent Register) (1) The Commissioner of KIPO shall keep the Patent
Register at KIPO and shall enter the following matters therein:
1. The grant, transfer, expiration, and reinstatement of patents, restrictions on the
disposal of patents, and the extension of patent terms;
2. The grant, preservation, transfer, amendment, and expiration of exclusive or
non-exclusive licenses and restrictions on the disposal of exclusive or non-
exclusive licenses;
3. The grant, transfer, amendment, and expiration of pledges on a patent or on an
exclusive or non-exclusive license and restrictions on the disposal of such
pledges.
(2) The Patent Register prescribed in paragraph (1) may be fully or partially stored
on electronic recording medium, etc.
(3) Except as otherwise expressly provided for in paragraphs (1) and (2), matters
necessary for the facts to be registered, and procedures for registration shall be
prescribed by Presidential Decree.
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(4) Specifications and drawings of patented inventions, and other documents
specified by Presidential Decree shall be deemed part of the Patent Register.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 86 (Issuance of Patent Registration Certificates) (1) When the grant of a patent
is registered, the Commissioner of KIPO shall issue a patent registration certificate
to the patentee.
(2) If any discrepancy exists between a patent registration certificate and the
Patent Register or any other document, the Commissioner of KIPO shall recover the
certificate, upon request or ex officio, and shall rectify it or re-issue the patent
registration certificate.
(3) When a trial ruling on a trial for rectification under Article 136 (1) becomes final
and conclusive, the Commissioner of KIPO shall re-issue the patent registration
certificate in accordance with the trial ruling.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER V PATENT RIGHTS
Article 87 (Registration of Grant of Patents and Publication of Registration) (1) A
patent shall take effect when the grant of the patent is registered.
(2) The Commissioner of KIPO shall register the grant of a patent in any of the
following cases:
1. Where patent fees are paid under Article 79 (1);
2. Where the late payment of patent fees is made under Article 81 (1);
3. Where an under-paid patent fee is paid under Article 81-2 (2);
4. Where a patent fee or an under-paid patent fee is paid under Article 81-3 (1);
5. Where the payment of patent fees is exempted under Article 83 (1) 1 or 83 (2).
(3) When the grant of a patent is registered under paragraph (2), the Commissioner
of KIPO shall give public notice of the registration by publishing the name and
domicile of the patentee, the patent number, and other matters specified by
Presidential Decree in the Patent Gazette.
(4) The publication of registration of a patented invention to be kept confidential
shall be reserved until it is declassified, and upon declassification, the registration
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shall be published without delay in accordance with paragraph (3).
(5) The Commissioner of KIPO shall make available application documents and
accompanying materials to the general public for inspection for three months from
the publication date of the registration.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 88 (Term of Patent) (1) The term of a patent shall begin on the registration
date of the grant of the patent right under Article 87 (1) and last for 20 years from
the filing date of the patent application.
(2) Where a patent is granted for a patent application filed by the legitimate right-
holder under Article 34 or 35, the term of the patent under paragraph (1) shall begin
on the day immediately following the filing date of the patent application filed by the
unentitled person.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 89 (Extension of Patent Terms by Permission, etc.) (1) Notwithstanding Article
88 (1), the term of a patent on an invention may be extended only once by up to five
years to compensate for the period during which the invention cannot be worked, if
the invention is specified by Presidential Decree and requires permission,
registration, etc. under any other Act or subordinate statute (hereinafter referred to
as "permission, etc.") to work patented invention but it takes a long time to undergo
necessary tests for validity, safety, etc. for such permission, registration, etc.
(2) For the purposes of paragraph (1), the period required due to a cause
attributable to the person who has obtained permission, etc. shall not be included in
"period during which the invention cannot be worked" in paragraph (1).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 90 (Applications for Registration of Extended Patent Terms by Permission, etc.)
(1) A person who intends to obtain an extension of the term of a patent registered
under Article 89 (1) (hereafter referred to as "applicant for registration of an
extension" in this Article and Article 91) shall file an application for registration of an
extension of a patent with the Commissioner of KIPO, stating the following therein:
1. The name and domicile of the applicant for registration of the extended term (if
the applicant is a corporation, his/her name and place of business);
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2. The name and domicile, or place of business of the agent, if the applicant for
registration of an extension is represented by an agent (if the agent is a patent firm
or a limited-liability patent firm, its name and place of business, and the name of
the designated patent attorney);
3. The patent number of the patent, the term of which is to be extended, and
descriptions of the claims for which the term is to be extended;
4. The length of extension requested;
5. Details of permission, etc. under Article 89 (1);
6. The ground for extension, specified by Ordinance of the Ministry of Trade,
Industry, and Energy (accompanied by materials substantiating the ground).
(2) An application for registration of an extension of a patent under paragraph (1)
shall be filed within three months from the date on which permission, etc. is granted
under Article 89 (1): Provided, That no application for registration of an extension of
a patent may be filed six months prior to the expiration of the term of the patent
under Article 88.
(3) If a patent is jointly held, an application for registration of the extended term of
the patent shall be jointly filed by all entitled persons.
(4) When an application for registration of an extension of a patent is filed under
paragraph (1), the term shall be deemed extended: Provided, That the foregoing
shall not apply where a decision to reject an application for registration of an
extension under Article 91 becomes final and conclusive.
(5) Upon receipt of an application for registration of an extension of a patent under
paragraph (1), the Commissioner of KIPO shall publish information specified in
paragraph (1) in the Patent Gazette.
(6) An applicant for registration of an extension of a patent may amend any matter
specified in paragraph (1) 3 through 6, which are stated in the application for
registration of an extension (excluding the patent number allocated to the patent, the
term of which is to be extended under subparagraph 3), before the Commissioner of
KIPO serves a certified copy of a decision on registration of rejection of the
extension on the applicant: Provided, That he/she may make an amendment only
during the period set for submission of written arguments on the notice of the ground
for rejection, if the notice of the ground for rejection, to which relevant provisions
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shall apply mutatis mutandis pursuant to Article 93, has been already served.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 91 (Determination to Reject Applications for Registration of Extended Patent
Term by Permission, etc.)
In any of the following applies to an application for registration of an extended patent
term under Article 90, an examiner shall determine to reject the application:
1. Where it is found unnecessary to obtain permission, etc. under Article 89 (1) for
working the relevant patented invention;
2. Where a patentee or an exclusive license holder or a registered non-exclusive
licenses on the relevant patent fails to obtain permission, etc. under Article 89 (1);
3. Where the length of extension requested exceeds the period during which the
relevant paten invention could not be worked under Article 89;
4. Where the applicant for registration of an extension is not the patentee;
5. Where the application for registration of an extension is filed in violation of
Article 90 (3).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 92 (Determination to Register Extended Patent Term by Permission, etc.) (1) If
an examiner finds that a ground set forth in any subparagraph of Article 91 does not
apply to an application for registration of an extended patent term under Article 90,
he/she shall determine to register the extended term.
(2) When the Commissioner of KIPO has decided to register an extended patent
term under paragraph (1), he/she shall register the extended term in the Patent
Register.
(3) When the Commissioner of KIPO completes the registration under paragraph
(2), he/she shall publish the following information in the Patent Gazette:
1. The name and domicile of the patentee (if the patentee is a corporation, his/her
name and place of business);
2. The patent number;
3. The date the extension is registered;
4. The extended patent term;
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5. Details of permission, etc. under Article 89 (1).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 92-2 (Extension of Term of Patent Right Following Delayed Registration) (1)
When the registration of establishment of a patent right is delayed than the date on
which four years lapse after the date of a patent application or the date on which
three years lapse after a request for the examination of an application is made,
whichever is later, the term of the relevant patent right may be extended as much as
the delayed period, notwithstanding the provisions of Article 88 (1).
(2) In applying the provisions of paragraph (1), the period delayed due to an
applicant shall be excluded from the extension of the term of a patent right under
paragraph (1): Provided, That when the period delayed due to an applicant overlaps
with the abovementioned delayed period, the period excluded from the extension of
the term of a patent right shall not exceed the actual period delayed due to an
applicant.
(3) Matters concerning "the period delayed due to an applicant" under paragraph (2)
shall be prescribed by Presidential Decree.
(4) When four years are reckoned from the date of a patent application pursuant to
paragraph (1), any date falling under each of the following subparagraphs shall be
deemed the date of a patent application, notwithstanding the provisions of Articles
34, 35, 52 (2), 53 (2), 199 (1) and 214 (4):
1. The date when the lawful holder of a right applies for a patent, in cases of a
patent application by the lawful holder of a right pursuant to Article 34 or 35;
2. The date when a divisional application is filed, in cases of a divisional application
under Article 52;
3. The date when a converted application is filed, in cases of a converted application
under Article 53;
4. The date when a document containing matters falling under subparagraphs of
Article 203 (1) is submitted, in cases of an international application construed as a
patent application pursuant to Article 199 (1);
5. The date when an applicant who filed an international application requests the
Commissioner of the Korean Intellectual Property Office to make a decision
pursuant to Article 214 (1), in cases of an international application construed as a
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patent application pursuant to Article 214;
6. The date when a patent application is filed, in cases of a patent application which
does not fall under any of the subparagraphs 1 through 5.
[This Article Newly Inserted by Act No. 11117. Dec. 2, 2011]
Article 92-3 (Application to Register Extension of Term of Patent Right Following
Delayed Registration) (1) Any person who intends to apply to register extension of
the term of a patent right under Article 92-2 (hereinafter referred to as "applicant
for registration of extension" in this Article and Article 92-4) shall submit an
application for registration of extension of the term of a patent right stating the
following matters to the Commissioner of the Korean Intellectual Property Office:
<Amended by Act No. 11690, Mar. 23, 2013; Act No. 11962, Jul. 30, 2013>
1. The name and domicile of an applicant for registration of extension (if the
applicant is a juristic person, its title and the location of its business office);
2. The name and domicile of an agent, if any, or the location of his/her business
office (if the agent is a patent corporation or a patent corporation (LLC), its title,
the location of its business office and the designated patent attorney’s name);
3. The number of a patent whose term is subject to extension;
4. The period of application for extension;
5. Grounds for extension prescribed by Ordinance of the Ministry of Trade, Industry
and Energy (data certifying such grounds shall be attached thereto).
(2) An application to register extension of the term of a patent right pursuant to
paragraph (1) shall be filed within three months from the date of registration of a
patent right.
(3) Where a patent right is owned by joint owners, an application to register
extension of the term of a patent right shall be filed by all joint owners.
(4) Any applicant for registration of extension may revise matters falling under
paragraph (1) 4 and 5, from among matters stated in a written application for
registration of extension, before an examiner decides whether extension of the term
of a patent right shall be registered: Provided, That after he/she receives a notice on
grounds for refusal, which are applied mutatis mutandis under Article 93, he/she may
revise such matters only during a period for submission of opinions following the
relevant notice on grounds for refusal.
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[This Article Newly Inserted by Act No. 11117. Dec. 2, 2011]
Article 92-4 (Decision to Reject Application to Register Extension of Term of Patent
Right Following Delayed Registration)
When an application to register extension of term of a patent right pursuant to
Article 92-3 falls under any of the following subparagraphs, an examiner shall
decide to reject the application:
1. When the period of the application for extension exceeds a period of extension
recognized pursuant to Article 92-2;
2. When an applicant for registration of extension is not the relevant patentee;
3. When the application for registration of extension is filed, in violation of Article
92-3 (3).
[This Article Newly Inserted by Act No. 11117, Dec. 2, 2011]
Article 92-5 (Decision, etc to Register Extension of Term of Patent Right Following
Delayed Registration) (1) When an examiner cannot find a ground falling under any
of the subparagraphs of Article 92-4, with regard to any application to register
extension of term of a patent right pursuant to Article 92-3, he/she shall decide to
register such extended term.
(2) When a decision is made to register extension of term of a patent right pursuant
to paragraph (1), the Commissioner of the Korean Intellectual Property Office shall
register such extension with the patent original register.
(3) When any registration is made pursuant to paragraph (2), the following matters
shall be included in the patent gazette:
1. The name and domicile of a patentee (if a patentee is a juristic person, its name
and its business place);
2. The patent number;
3. The date when the extension of term of a patent right is registered;
4. The period of extension.
[This Article Newly Inserted by Act No. 11117, Dec. 2, 2011]
Article 93 (Provisions Applicable Mutatis Mutandis) Article 57 (1), 63, 67, and
subparagraphs 1 through 5 and 7 of Article 148 shall apply mutatis mutandis to
examination of an application for registration of an extended term of a patent.
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[This Article Wholly Amended by Act No. 11117, Dec. 2, 2011]
Article 94 (Effects of Patent) A patentee shall have the exclusive right to commercially
and industrially work his/her patented invention: Provided, That the foregoing shall
not apply where an exclusive license of the patent has been granted so that the
exclusive licensee can have the exclusive right to work the patented invention under
Article 100 (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 95 (Effects of Patent with Extended Term by Permission, etc.)
The effects of a patent, the term of which has been extended under Article 90 (4),
shall extend only to working the patented invention on the things on which
permission, etc. for registration of the extension is based (things used for specified
purposes, if the purposes of such things are specified in the permission, etc.).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 96 (Limitations on Effects of Patents) (1) The effects of a patent shall not
extend to the following:
1. Working of a patented invention for the purpose of research or testing (including
research and testing for obtaining permission for items of medicines, or reporting
items of medicines by under the Pharmaceutical Affairs Act or for registering
pesticides under the Pesticide Control Act;
2. Ships, aircraft, vehicles merely passing through the Republic of Korea, or
machines, instruments, equipment, or other articles used therein;
3. Articles existing in the Republic of Korea as at the time the relevant patent
application was filed.
(2) The effects of a patent on the invention of a medicine manufactured by mixing at
least two medicines (referring to products used for the diagnosis, relief, treatment,
therapy, or prevention of human diseases; hereinafter the same shall apply) or on the
invention of a process for manufacturing medicines by mixing at least two medicines
shall not extend to the preparation of prescriptions and medicines prepared according
to such prescriptions under the Pharmaceutical Affairs Act.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 97 (Scope of Protection of Patented Inventions)
The scope of protection of a patented invention shall be determined by the
descriptions of the claims.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 98 (Relationships to others' Patented Inventions, etc.)No patentee, exclusive
licensee, nor non-exclusive licensee shall commercially or industrially work any
patented invention on which he/she has the right to work, without permission from
the patentholder, the holder of a registered utility model, design, or trademark, if the
patented invention uses a third person's patented invention or registered utility
model or design claimed in an application filed prior to the filing date of the patent
application for the patented application, or any similar design or infringes a third
person's registered design or trademark claimed in an application filed prior to the
filing date of the patent application for the patented application.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 99 (Transfer and Joint Ownership of Patents) (1) A patent is transferable.
(2) If a patent is jointly owned, no joint owner of the patent may transfer his/her
share or grant any pledge over his/her share, without the consent of all other joint
owners.
(3) Except as otherwise agreed in writing, any joint owner of a patent may
independently work the patented invention without the consent of all other joint
owners.
(4) If a patent is jointly owned, no joint owner of the patent may grant an exclusive
or non-exclusive license of the patent, without the consent of all other joint owners.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 100 (Exclusive Licenses) (1) A patentee may grant an exclusive license of the
patent to third persons.
(2) An exclusive licensee with the exclusive license shall have the sole right to
commercially or industrially work the patented invention to the extent prescribed at
the grant of the license.
(3) Except in the following cases, no exclusive licensee may transfer the exclusive
license, without the consent of the patentee:
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1. Where the exclusive license is transferred with the underlying business;
2. Where the exclusive license is transferred by inheritance or other universal
succession.
(4) No exclusive licensee may grant a pledge or non-exclusive license of the
exclusive license, without the consent of the patentee.
(5) Article 99 (2) through (4) shall apply mutatis mutandis to exclusive licenses.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 101 (Effects of Registration of Patents and Exclusive Licenses) (1) The
following dispositions shall take effect upon registration:
1. The transfer (excluding transfer by inheritance or other universal succession) of
a patent, the expiration of a patent by relinquishment, or restrictions on the
disposal of a patent;
2. The grant, transfer (excluding transfer by inheritance or other universal
succession), amendment, or expiration (excluding expiration by confusion) of an
exclusive license or restrictions on the disposal of an exclusive license;
3. The grant, transfer (excluding transfer by inheritance or other universal
succession), amendment, or expiration (excluding expiration by error) of a pledge
on a patent or an exclusive license or restrictions on the disposal of such pledge.
(2) When a patent, exclusive license, or pledge is transferred by inheritance or
other universal succession as referred to in paragraph (1), a report thereon shall be
filed without delay with the Commissioner of KIPO.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 102 (Non-Exclusive Licenses) (1) A patentee may grant a non-exclusive
license of the patent to others.
(2) A non-exclusive licensee shall have the right to commercially or industrially
work the patented invention to the extent provided for in this Act or prescribed at
the grant of the license.
(3) A non-exclusive license granted under Article 107 may be transferred, only if it
is transferred with the underlying business.
(4) A non-exclusive license granted under Article 138 of this Act, Article 32 of the
Utility Model Act, or Article 123 of the Design Protection Act shall be transferred
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with the relevant patent, utility model right, or design right of the non-exclusive
licensee, and shall expire simultaneously with the expiration of the relevant patent,
utility model right, or design right.
(5) No non-exclusive license, other than non-exclusive licenses referred to in
paragraphs (3) and (4), shall be transferred without the consent of the patentee (or
the consent of the patentee and the exclusive licensee, if the non-exclusive license
is based on an exclusive license), unless it is transferred with the underlying
business or by inheritance or other universal succession.
(6) No pledge may be granted on a non-exclusive license, other than non-
exclusive licenses referred to in paragraphs (3) and (4), without the consent of the
patentee (or the consent of the patentee and the exclusive licensee, if the non-
exclusive license is based on an exclusive license).
(7) Article 99 (2) and (3) shall apply mutatis mutandis to non-exclusive licenses.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 103 (Non-Exclusive Licenses Based on Prior Use)
A person who has created the same invention as a patent claimed in an application
filed for registration of the patent without prior knowledge of the invention claimed in
the patent application, or who has become aware of such patent from the person who
had created it before the patent application was filed, and commercially or
industrially works, or prepares to work, the patent within the Republic of Korea shall
be granted a non-exclusive license of the patent on the invention claimed in the
patent application within the scope of objectives of the invention that the person
works or prepares to work and of the business.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 104 (Non-Exclusive Licenses Based on Working Prior to Registration of Petitions
for Trial on Invalidity) (1) If any of the following persons has worked, or has
prepared to work, his/her patented invention or registered utility model commercially
or industrially within the Republic of Korea, without knowing that the patented
invention or registered utility model is invalid, before a petition seeking a trial to
invalidate the patent or the registration of the utility model is filed, the person shall
be granted a non-exclusive license of the patent or on the exclusive license of the
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patent existing as at the time the patent or the registration of the utility model was
invalidated, within the scope of objectives of the invention or design that the person
has worked or has prepared to work and of the business:
1. The original patentee of the invalidated patent, where one of at least two patents
on the identical invention is invalidated;
2. The original owner of a registered but invalidated utility model, where the
registered utility model is invalidated because it is identical to a patented invention;
3. The original patentee of an invalidated patent, where the patent is invalidated, and
another patent is granted to the legitimate right-holder of the identical invention;
4. The original owner of an invalidated utility model, where the registration of the
his/her utility model is invalidated and a patent is granted to the legitimate right-
holder on the invention identical to the design;
5. A person who has already acquired and registered an exclusive license, a non-
exclusive license, or a non-exclusive license of the exclusive license before a
petition seeking a trial to invalidate the patent or utility model, which is invalidated
under any provision of subparagraphs 1 through 4, is filed: Provided, That the
person who has acquired a non-exclusive license under Article 118 (2) shall need
not be registered.
(2) A person granted a non-exclusive license under paragraph (1) shall pay
equitable remuneration to the patentee or exclusive licensee.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 105 (Non-Exclusive Licenses after Expiration of Design Rights) (1) If a design
right claimed in an application filed on or before the filing date of a patent application
and registered accordingly conflicts with the patent, the holder of the design right at
the expiration of the term of the design right shall have a non-exclusive license of
the patent within the scope of the design right or a non-exclusive license of the
exclusive license that exists on the patent at the expiration of the term of the design
right, within the scope of the design right.
(2) If a design right claimed in an application filed on or before the filing date of a
patent application and registered accordingly conflicts with the patent, the holder of
either of the following rights at the expiration of the design right shall have a non-
exclusive license of the patent within the scope of the design right or a non-
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exclusive license of the exclusive license that exists on the patent at the expiration
of the design right, within the scope of the original right:
1. An exclusive license of the design right that exists at the expiration of the term of
the design right;
2. A non-exclusive license in effect over the design right or an exclusive license of
the design right under Article 104 (1) of the Design Protection Act.
(3) A non-exclusive license holder under paragraph (2) shall pay equitable
remuneration to the patentee or exclusive licensee.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 106 (Expropriation of Patents) (1) The Government may expropriate patents if
deemed necessary for national defense at time of a war, an accident, or similar
emergency.
(2) If a patent is expropriated, all rights to the invention, except the patent, shall be
extinguished.
(3) When the Government expropriates a patent under paragraph (1), it shall pay
reasonable compensation to the patentee, exclusive licensee, or non-exclusive
licensee.
(4) Matters necessary for expropriating patents and paying compensation therefor
shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 106-2 (Working of Patented Inventions by Government, etc.) (1) If the
Government deems it necessary to non-commercially work a patented invention due
to a national or dire emergency, or for public interests, it may directly work the
patented invention or authorize any other person to work it on its behalf.
(2) When the Government or any other person referred to in paragraph (1) knew or
becomes aware that any other person's patent exists, the Government or the person
shall immediately notify the patentee, exclusive licensee, or non-exclusive licensee
of the working under paragraph (1).
(3) When the Government or any other person referred to in paragraph (1) works a
patented invention under paragraph (1), the Government or the person shall pay
reasonable compensation to the patentee, exclusive licensee, or non-exclusive
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licensee.
(4) Matters necessary for working a patented invention and paying compensation
therefor shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 107 (Adjudication on Grant of Non-Exclusive Licenses) (1) If a patented
invention falls under any of the following, and a person who intends to work the
patented invention fails, or is unable, to reach agreement with the patentee or
exclusive licensee of the patented invention on the grant of a non-exclusive license
(hereafter referred to as "agreement" in this Article) under reasonable terms and
conditions, although the person has negotiated the agreement, the person may file a
petition for adjudication on the grant of the non-exclusive license (hereinafter
referred to as "adjudication") with the Commissioner of KIPO: Provided, That such a
person may file a non-negotiated petition for adjudication, if he/she intends to non-
commercially work a patented invention for public interests or in case falling under
subparagraph 4:
1. If the patented invention has not been worked in the Republic of Korea for at least
three consecutive years, except in cases of a natural disaster, force majeure event,
or due to other just grounds specified by Presidential Decree;
2. If the patented invention has not been worked commercially in the Republic of
Korea on a substantial scale for at least three consecutive years without any just
grounds, or fails to meet the demand in the Republic of Korea to an appropriate
extent under reasonable terms and conditions;
3. If is particularly necessary to work the patented invention for public interests;
4. If it is necessary to work the patented invention to rectify unfair trade practices
found through judicial or administrative proceedings;
5. If it is necessary to work the patented invention to export medicines to a country
that intends to import (hereafter referred to as "importing country" in this Article)
the medicines (including effective ingredients necessary for producing the
medicines and diagnostic kits necessary for using such medicines) to cure diseases
that threaten the health of the majority of its citizens.
(2) Paragraph (1) 1 and 2 shall not apply to a patented invention, unless four years
have passed since the filing date of the patent application for the patented invention.
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(3) When the Commissioner of KIPO adjudicates on petitions, he/she shall examine
the necessity to grant a non-exclusive license for each petition.
(4) When the Commissioner of KIPO adjudicates on a petition under any of the
provisions of paragraph (1) 1 through 3 and 5, he/she shall impose the following
conditions upon the petitioner:
1. In cases of adjudication under any of the provisions of paragraph (1) 1 through 3,
the non-exclusive license shall be worked primarily for the purpose of supply to
meet domestic demand;
2. In cases of adjudication under paragraph (1) 5, the produced medicines shall be
exported entirely to the importing county.
(5) When the Commissioner of KIPO adjudicates on a petition, he/she shall ensure
that a reasonable price is paid therefor. He/she may consider the following factors in
determining the price when he/she is petitioned to adjudicate under paragraph (1) 4
or 5:
1. In cases of adjudication under paragraph (1) 4, the purpose to rectify unfair trade
practices;
2. In cases of adjudication under paragraph (1) 5, the economic value created in the
importing country by working the patented invention.
(6) A petition for adjudication regarding semi-conductor technology may be filed
only in cases falling under paragraph (1) 3 (limited to where a patented invention
shall be non-commercially worked for public interests) or 4.
(7) The importing countries shall be limited to the World Trade Organization
member countries that have notified the World Trade Organization of the following
matters, or non-WTO member countries that have notified the Government of the
Republic of Korea of the following matters, among the countries specified by
Presidential Decree:
1. The names and quantities of medicines required by each importing country;
2. Each importing country's confirmation that it is incapable of, or lacks ability to
manufacture the relevant medicines if the relevant country is not on the least
developed countries listed in a resolution by the General Assembly of the United
Nations;
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3. Each importing country's confirmation that it has granted, or is willing to grant, a
compulsory license, if the relevant medicines are patented in the importing country.
(8) Medicines referred to in paragraph (1) 5 shall be:
1. Patented medicines;
2. Medicines produced by patented manufacturing method;
3. Patented effective ingredients necessary for producing medicines;
4. Patented diagnostic kits necessary for using medicines.
(9) Documents to be submitted by petitioners for adjudication, and other matters
necessary for adjudication shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 108 (Submission of Responses)
Upon receipt of a petition for adjudication, the Commissioner of KIPO shall serve a
duplicate of the written petition on the patentee, exclusive licensee, and other
persons who have any registered right or interest in the patent, and shall provide
them with an opportunity to submit a response within a specified period.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 109 (Seeking Opinions from Committee for Mediation of Disputes over
Intellectual Property Rights and from Heads of Related Ministries and Administrative
Agencies)
The Commissioner of KIPO may seek opinions from the Committee for Medication of
Disputes over Intellectual Property under the Invention Promotion Act, and from the
heads of related Ministries and administrative agencies, and may request cooperation
from related administrative agencies or relevant persons, if deemed necessary for
adjudication.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 110 (Formalities, etc. of Adjudication) (1) Adjudication shall be made in writing
and shall detail the grounds therefor.
(2) Adjudication made under paragraph (1) shall detail the following:
1. The scope and term of the non-exclusive license;
2. The consideration for the license, method of, and timing for payment of the
consideration;
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3. In cases of adjudication under Article 107 (1) 5, packaging and labels with which
the products can be externally distinguished from the medicines supplied by the
patentee, exclusive licensee, or non-exclusive licensee (excluding the holder of a
non-exclusive license granted through adjudication) of the relevant patented
invention, and the address of the web-site on which the matters settled in
adjudication are to be disclosed;
4. Other matters to be observed by the person for whom adjudication is made to
implement the provisions of the relevant Acts and subordinate statutes or a
relevant treaty in working the patented invention.
(3) The Commissioner of KIPO shall make adjudication within six months from the
filing date of a petition for adjudication, unless just grounds exist.
(4) If a petition filed for adjudication under Article 107 (1) 5 is applicable under
Article 107 (7) or (8), and all documents specified in Article 107 (9) have been
submitted, the Commissioner of KIPO shall make adjudication to grant a non-
exclusive license, unless just grounds exist.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 111 (Service of Certified Copies of Adjudications) (1) Where the Commissioner
of KIPO makes adjudication, he/she shall serve a certified copy of the adjudication on
each party to the dispute and other persons who have a registered right or interest in
the patent.
(2) When a certified copy of adjudication is served on the parties under paragraph
(1) agreement shall be deemed reached between the parties under the terms and
conditions stated in the adjudication.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 111-2 (Amendment of Written Adjudication) (1) If a person for whom
adjudication has been made needs to amend the adjudication regarding the matter
specified in Article 110 (2) 3, he/she may file a request for amendment with the
Commissioner of KIPO, with documents evidencing the ground for such amendment.
(2) If the Commissioner of KIPO finds that a request filed under paragraph (1) has
merit, he/she may amend the relevant matter in the adjudication. In such cases, the
Commissioner of KIPO shall hear opinions of interested parties thereon.
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(3) Article 111 shall apply mutatis mutandis to cases falling under paragraph (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 112 (Deposit of Consideration)
A party obliged to pay consideration under Article 110 (2) 2 shall pay it into the
competent court in any of the following cases:
1. Where the party entitled to the consideration refuses, or is unable, to receive it;
2. Where legal proceedings have been filed with respect to the consideration under
Article 190 (1);
3. Where the relevant patent or exclusive license is the subject-matter of a pledge:
Provided, That the foregoing shall not apply where the pledgee consents to
payment.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 113 (Annulment of Adjudication)
If a person for whom adjudication has been made fails to pay the consideration (the
initial installment, if the consideration is to be paid periodically or in installments) or
fails to pay it into the competent court, the adjudication shall become null and void.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 114 (Revocation of Adjudications) (1) In any of the following cases, the
Commissioner of KIPO may revoke adjudication upon request from an interested
party or ex officio: Provided, That subparagraph 2 shall only apply where the rightful
interests of the non-exclusive licensee for whom the adjudication has been made,
can be protected:
1. Where the non-exclusive licensee fails to work the patented invention within the
scope of the adjudication;
2. Where the ground for adjudication granting the non-exclusive license disappears
and it is deemed that such ground will not reoccur;
3. Where the non-exclusive licensee breaches any term or condition prescribed
under Article 110 (2) 3 or 4 in the written adjudication without just grounds.
(2) Articles 108, 109, 110 (1), and 111 (1) shall apply mutatis mutandis to cases
falling under paragraph (1).
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(3) A non-exclusive license shall be extinguished upon the revocation of the
relevant adjudication under paragraph (1).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 115 (Restriction on Grounds for Objection to Adjudication)
Where an appeal for a trial is filed against adjudication in accordance with the
Administrative Appeals Act or legal proceedings seeking the revocation of
adjudication are filed in accordance with the Administration Litigation Act, the
consideration determined by the adjudication shall not be a ground for the appeal.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 116 Deleted. <by Act No. 11117, Dec. 2, 2011>
Article 117 Deleted. <by Act No. 6411, Feb. 3, 2001>
Article 118 (Effects of Registration of Non-Exclusive Licenses) (1) Where a non-
exclusive license has been registered, it shall be effective also against any person
who subsequently obtains the patent or an exclusive license.
(2) A non-exclusive license granted under any of the provisions of Articles 81-3
(5), 103 through 105, 122, 182, and 183 of this Act and Article 10 (1) of the
Invention Promotion Act shall have the same effect as prescribed under paragraph
(1), even where it is unregistered.
(3) No person may have a valid claim or defense against a third party on the ground
of the transfer, amendment, or extinguishment of a non-exclusive license, a
restriction on the disposal of a non-exclusive license, the grant, transfer,
amendment, or extinguishment of a pledge over a non-exclusive license, or a
restriction on the disposal of a pledge over a nonexclusive license, unless it is
registered.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 119 (Restriction on Abandonment of Patents, etc.) (1) No patentee may
abandon his/her patent without the consent of all the following persons:
1. The exclusive licensee, if any;
2. The pledgee, if any;
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3. Non-exclusive licensees referred to in Article 100 (4), if any;
4. Non-exclusive licensees referred to in Article 102 (1), if any;
5. Non-exclusive licensees referred to in Article 10 (1) of the Invention Promotion
Act, if any.
(2) No exclusive licensee may abandon his/her exclusive license without the
consent of the pledgee or non-exclusive licensees referred to in Article 100 (4).
(3) No non-exclusive licensee may abandon his/her non-exclusive license without
the consent of the pledgee.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 120 (Effect of Abandonment)
A patent, or exclusive or non-exclusive license shall be extinguished at the time the
patent or the exclusive or non-exclusive license is abandoned.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 121 (Pledge)
Where a patent, or exclusive or non-exclusive license is pledged, the pledgee shall
not work the patented invention, unless otherwise expressly agreed in writing.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 122 (Non-Exclusive Licenses Subsequent to Transfer of Patent by Exercise of
Pledge)
If a patentee has worked a patented invention before a pledge is granted on the
patent, the patentee shall have a non-exclusive license of the patented invention,
even after the patent is transferred to any third person by an auction or similar
proceeding. In such cases, the patentee shall pay equitable remuneration to the
person who obtains the patent by the auction or any similar proceeding.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 123 (Subrogation of Pledge)
A pledge may be exercised against compensation under this Act or against
consideration or goods receivable in return for working the patented invention:
Provided, That such consideration or goods shall be attached before paid or
delivered.
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 124 (Extinguishment of Patent in Absence of Heir)
A patent shall be extinguished if no heir exists when the relevant inheritance
proceeding commences.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 125 (Reporting on Working of Patent)
The Commissioner of KIPO may require a patentee, or an exclusive or non-
exclusive licensee to report whether he/she has worked the patented invention, the
extent he/she has worked it, etc.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 125-2 (Title of Execution on Compensation and Consideration)
A final and conclusive decision on the amount of compensation or consideration
determined by the Commissioner of KIPO under this Act shall have the same effect
as an enforceable title of execution. In such cases, the enforceable writ shall be
issued by a public official of KIPO.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER VI PROTECTION OF PATENTEES
Article 126 (Right to Seek Injunction against Infringement, etc.) (1) A patentee or an
exclusive licensee may file a complaint to seek injunction for, or prevention of,
infringement against a person who infringes, or is likely to infringe, his/her rights.
(2) When a patentee or an exclusive licensee files a complaint under paragraph (1),
he/she may demand the destruction of the means by which the infringement has been
committed (including the products obtained by infringement if the relevant invention
is a process for manufacturing the products), the removal of the facilities used for
infringement, and other measures necessary to prevent infringement.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 127 (Conduct Deemed Infringement)
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Conducting either of the following activities commercially or industrially shall be
deemed infringement of a patent or an exclusive license:
1. If the patent is for the invention of a thing: Producing, selling, leasing, or
importing a thing used exclusively for producing such thigh or offering to sell or
lease such thing;
2. If the patent is for the invention of a process: Producing, selling, leasing, or
importing a thing used exclusively for working the process or offering to sell or
lease such thing.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 128 (Estimation of Losses) (1) Where a patentee or exclusive licensee claims
compensation for a loss inflicted upon him/her against a person who has intentionally
or negligently infringed his/her patent or exclusive license, but the infringer has sold
the infringing products to third parties, the amount of loss that the patentee or
exclusive licensee has sustained may be calculated by multiplying the quantity of
products so sold by the profit per unit of the products that the patentee or the
exclusive licensee could have sold, but for the infringement.
(2) The amount of loss referred to in paragraph (1) shall not exceed the amount
calculated by multiplying the quantity of products that the patentee or exclusive
licensee could have produced, less the quantity of products actually sold, by the
profit per unit: Provided, That the quantity of products that the patentee or exclusive
licensee could not sold due to any cause or event other than the infringement shall be
subtracted therefrom, if such cause or event, in addition to the infringement,
prevented the patentee or exclusive licensee from selling the products.
(3) Where a patentee or exclusive licensee claims compensation for a loss inflicted
by a person who has intentionally or negligently infringed the patent or exclusive
license, the profits that the infringer has gained due to the infringement, if any, shall
be deemed the loss that the patentee or exclusive licensee has sustained.
(4) Where a patentee or exclusive licensee claims compensation for a loss inflicted
by a person who has intentionally or negligently infringed the patent or exclusive
license, the patentee or exclusive licensee may claim the amount that he/she would
usually be entitled to accept for working the patented invention as the loss that
he/she has sustained.
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(5) Notwithstanding paragraph (4), the amount of loss exceeding the amount
specified in the same paragraph may also be claimed as damages. In such cases, the
court may consider the fact that there was no intentional conduct or gross negligence
on the part of the person who infringed the patent or exclusive license in determining
the damages.
(6) If the court finds, in legal proceedings on infringement of a patent or exclusive
license, that a loss has been incurred due to the infringement but it is extremely
impracticable to find the facts necessary for evidencing the loss in light of the nature
of relevant facts, it may award reasonable damages based on the gist of entire
arguments and the results of examination of evidence, notwithstanding paragraphs
(1) through (5).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 129 (Presumption of Manufacturing Process)
Where a patent has been granted for inventing a manufacturing process of a thing,
any product identical to the thing shall be deemed manufactured by the patented
process: Provided, That the foregoing shall not apply to any of the following:
1. A thing that has been publicly known or worked in the Republic of Korea prior to
the filing of the patent application;
2. A thing that has been published in a publication distributed in the Republic of
Korea or in any foreign country, or has been disclosed to the public domain through
telecommunication lines prior to the filing of the patent application.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 130 (Presumption of Negligence)
A person who infringes a patent or exclusive license of any third person shall be
presumed negligent regarding such infringement.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 131 (Reinstatement of Reputation of Patentee, etc.)
Upon request of a patentee or exclusive licensee, the court may order the person
who has degraded the business reputation of the patentee or exclusive licensee by
intentionally or negligently infringing the patent or exclusive license to take
necessary measures to reinstate the business reputation of said patentee or
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exclusive licensee, in lieu of damages therefor or in addition to damages.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 132 (Submission of Documents)
Upon receipt of a request from either party to legal proceedings on infringement of a
patent or exclusive license, the court may order the other party to submit documents
necessary for assessing losses caused by the relevant infringement: Provided, That
the foregoing shall not apply where the person possessing the documents has a
reasonable ground to refuse to submit them.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER VII TRIALS
Article 132-2 (Korean Intellectual Property Trial and Appeal Board) (1) KIPT shall be
established under the jurisdiction of the Commissioner of KIPO to take charge of
trials and retrials on patents, utility models, designs, and trademarks, and
investigations and research thereon.
(2) KIPT shall be comprised of the President and administrative patent judges.
(3) Matters necessary for the organizational structure, personnel, and operation of
KIPT shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 132-3 (Trial on Rulings Rejecting Patent Applications, etc.)
If a person has an objection to a ruling rejecting a patent application or to a ruling
rejecting an application to register the extended term of a patent, he/she may file a
petition for trial within 30 days from the date he/she is served with a certified copy
of the ruling.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 132-4 Deleted. <by Act No. 6411, Feb. 3, 2001>
Article 133 (Trial on Invalidity of Patents) (1) In any of the following cases, an
interested party or examiner may file a petition for trial to seek invalidation of a
patent. In such cases, when the claim contains at least two claims, a petition for trial
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for invalidation may be filed for each claim: Provided, That any person may file a
petition for trial for invalidation on any of the following grounds (excluding the
ground specified in subparagraph 2), if three months have not passed since the date
the registration of the patent is published after the grant of the patent is registered.
1. If the patent violates any of the provisions of Articles 25, 29, 32, 36 (1) through
(3), 42 (3) 1, or Article 42 (4);
2. If the patentee is unentitled to the patent under the main body of Article 33 (1),
or violates Article 44;
3. If the patentee is not eligible for the patent under the proviso to Article 33 (1);
4. If the patentee becomes unentitled to the patent under Article 25 after the grant
of the patent, or the patent violates a treaty;
5. If a person is unentitled to the patent because of his/her violation of a treaty;
6. If an amendment exceeds the scope specified in the former part of Article 47 (2);
7. If the relevant application is a divisional application that exceeds the scope
specified in Article 52 (1);
8. If the relevant application is a converted application that exceeds the scope
specified in Article 53 (1).
(2) A petition for trial referred to in paragraph (1) may be filed even after the
relevant patent is extinguished.
(3) If a trial ruling invalidating a patent becomes final and conclusive, the patent
shall be deemed never to have existed: Provided, That if a trial ruling invalidating a
patent under paragraph (1) 4 becomes final and conclusive, the patent shall be
deemed never to have existed since the patentee or the patent fell under the
aforesaid subparagraph.
(4) Upon receipt of a petition for trial under paragraph (1), the presiding judge shall
notify the exclusive licensee of the patent and other persons who hold a registered
right or interest in the patent, as to the details of the petition.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 133-2 (Correction of Patents during Trial for Invalidation of Patent) (1) A
defendant in trial under Article 133 (1) may request a correction of the specification
or any drawing of the relevant patented invention within the period specified in
Article 147 (1) or the latter part of Article 159 (1) only in cases specified in any
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subparagraph of Article 136 (1). In such cases, the presiding judge may permit the
defendant to request a correction within a specified period even after the lapse of the
period specified in Article 147 (1), if he/she deems it necessary to accept the
request for correction based upon the petitioner's presentation of evidentiary
documents.
(2) When a request for correction is filed under paragraph (1), any request for
correction made before the request for correction during the relevant trial for
invalidation shall be deemed withdrawn.
(3) Upon receipt of a request for correction under paragraph (1), the presiding
judge shall serve a duplicate of the request on the petitioner for the trial under
Article 133 (1).
(4) Article 136 (2) through (5), and (7) through (11), Article 139 (3), and Article
140 (1), (2) and (5) shall apply mutatis mutandis to requests for correction under
paragraph (1). In such cases, "before notice of closing of hearings is given under
Article 162 (3) (or before notice of closing of hearings is given under Article 162
(3), where hearings have been recommenced under Article 162 (4))" in Article 136
(9) shall be construed as "within the specified period where notice under Article 136
(5) is given."
(5) In applying paragraph (4), Article 136 (4) shall not apply mutatis mutandis
where a correction is made to a claim concerning which a petition for trial for
invalidation of a patent is filed under Article 133 (1).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 134 (Trial to Invalidate Registration for Extension of Patent) (1) In any of the
following cases, an interested party or examiner may file a petition for trial to
invalidate the registration of an extension of a patent under Article 92:
1. Where the extension has been registered with respect to an application that does
not require permission, etc. under Article 89 to work the relevant patented
invention;
2. Where the extension has been registered with respect to an application for which
the patentee, or exclusive licenses or a registered nonexclusive licensee on the
patent has not obtained permission, etc. under Article 89;
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3. Where the registered extension exceeds the period during which the patented
invention was not workable;
4. Where the extension has been registered for an application filed by any person,
other than the patentee;
5. Where the extension has been registered for an application filed in violation of
Article 90 (3).
(2) In any of the following cases, an interested party or examiner may file a petition
for trial to invalidate the registration of the extension of a patent under Article 92-5:
1. Where the term extended following registration exceeds the length of extension
permitted under Article 92-2;
2. Where the extension has been registered for an application filed by any person,
other than the patentee;
3. Where the extension has been registered for an application filed in violation of
Article 92 (3).
(3) Article 133 (2) and (4) shall apply mutatis mutandis to petitions for a trial under
paragraphs (1) and (2).
(4) If a trial ruling invalidating the registration of an extension becomes final and
conclusive, the term extended following registration shall be deemed never to have
existed: Provided, That only the relevant period shall be deemed never extended in
either of the following cases:
1. Where the registration of an extension is invalidated under paragraph (1) 3: The
period extended beyond the period during which the patented invention was not
workable;
2. Where the registration of an extension is invalidated under paragraph (2) 3: The
period extended beyond the length of extension permitted under Article 92-2.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 135 (Trials to Confirm Scope of Rights) (1) A patentee, exclusive licensee, or
interested party may file a petition for trial to confirm the scope of rights in a patent
to have the scope of protection of the patented invention confirmed.
(2) If a petition is filed for trial to confirm the scope of at least two claims in a
petition under paragraph (1), a petition may be filed for each claim separately.
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 136 (Trials for Corrections) (1) In any of the following cases, a patentee may
file a petition for trial to correct the specification or drawings of his/her patented
invention: Provided, That the foregoing shall not apply where a trial to invalidate a
patent or to invalidate a correction is pending in KIPT:
1. Where he/she intends to reduce the number of claims;
2. Where he/she intends to rectify a clerical error;
3. Where he/she intends to clarify an ambiguous description.
(2) Correction of a specification or drawings under paragraph (1) shall be limited to
the descriptions in the specification or drawings of a patented invention: Provided,
That rectification of clerical errors under paragraph (1) 2 may be permitted only for
the descriptions in the specification or drawings initially accompanying the
application.
(3) No correction of a specification or drawing under paragraph (1) shall
substantially extend or amend the claims.
(4) A correction made under paragraph (1) 1 or 2 shall be patentable at the time of
filing the patent application regarding the matters described in the claims after the
correction.
(5) If an administrative patent deems that a petition filed for a trial under paragraph
(1) falls under any of the following, he/she shall notify the petitioner of the ground
therefor and shall provide the petitioner with an opportunity to submit a written
argument thereon within a specified period:
1. If the petition does not fall under any subparagraph of paragraph (1);
2. If the petition exceeds the extent prescribed in paragraph (2);
3. If the petition violates paragraph (3) or (4).
(6) A petition for correction under paragraph (1) may be filed even after the
relevant patent is extinguished: Provided, That the foregoing shall not apply where a
trial ruling invalidating a patent (excluding invalidation under Article 133 (1) 4) has
become final and conclusive.
(7) No patentee may file trial for correction under paragraph (1) without the
consent of the exclusive licensee, pledgee, and non-exclusive licensees under
Articles 100 (4) and 102 (1) of this Act and Article 10 (1) of the Invention
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Promotion Act.
(8) When a trial ruling to correct the specification or drawings of a patented
invention becomes final and conclusive, it shall be deemed that filing and laying open
the relevant patent application, a decision or trial ruling to grant a patent, and the
registration of the grant of the patent have been made according to the corrected
specification or drawings.
(9) A petitioner may amend the corrected specification or drawings appended to a
petition filed for a trial under Article 140 (5) before notice of closing of hearings is
given under Article 162 (3) (or before notice of closing of hearings is given under
Article 162 (3), if hearings have been recommenced under Article 162 (4)).
(10) When a trial ruling to correct the specification or drawings of a patented
invention is rendered, the President of KIPT shall notify the Commissioner of KIPO
of the details thereof.
(11) Upon receipt of notice under paragraph (10), the Commissioner of KIPO shall
publish it in the Patent Gazette.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 137 (Trials to Invalidate Corrections) (1) If a correction of the specification or
drawings of a patented invention under Article 133-2 (1), 136 (1) or paragraph (3)
of this Article violates either of the following provisions, any interested party or the
examiner may file a petition for trial to invalidate the correction:
1. Any provision of Article 136 (1);
2. Any provision of Article 136 (2) through (4) (including cases to which the
aforesaid provisions shall apply mutatis mutandis pursuant to Article 133-2 (4)).
(2) Article 133 (2) and (4) shall apply mutatis mutandis to petitions for a trial under
paragraph (1).
(3) A defendant in trial for invalidation under paragraph (1) may request correction
of the specification or drawings of a patented invention within the period specified in
Article 147 (1) or the latter part of Article 159 (1) only in cases falling under any
subparagraph of Article 136 (1).
(4) Article 133-2 (2) through (4) shall apply mutatis mutandis to requests for
correction under paragraph (3). In such cases, "Article 133 (1)" in Article 133-2
(3) shall be construed as "Article 137 (1)."
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(5) Where a trial ruling invalidating a correction under paragraph (1) becomes final
and conclusive, the correction shall be deemed never made.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 138 (Trial for Grant of Non-Exclusive Licenses) (1) If a patentee, or exclusive
or non-exclusive licensee intends to obtain a license from another patentee or the
holder of a registered utility model, design, trademark to work the patented invention
because the patented invention falls under Article 98, but the other patentee or the
right-holder refuses to grant a license, or it is impossible to obtain a license from
the other patentee or the right-holder, he/she may file a petition for trial to seek
grant of a non-exclusive license within the extent necessary for working the
patented invention.
(2) Where a petition is filed under paragraph (1), no non-exclusive license shall be
granted, unless the relevant patented invention constitutes any important technical
advance of substantial economical value in comparison with the patented invention or
registered utility model claimed in the application filed by the other person prior to
the filing date of the patent application for the relevant patented invention.
(3) If a person who has granted a non-exclusive license in trial under paragraph (1)
needs to work the patented invention of the non-exclusive licensee, but if the non-
exclusive licensee refuses to grant a license or it is impossible to obtain a license,
the person may file a petition for trial to seek grant of a non-exclusive license within
the scope of the patented invention that the person intends to work with the non-
exclusive license.
(4) A non-exclusive licensee falling under paragraph (1) or (3) shall pay
consideration to the relevant patentee or the utility model right-holder or design
right-holder, or the exclusive licensee thereof: Provided, That if the non-exclusive
licensee is unable to pay such consideration due to a cause not attributable to
him/her, he/she shall deposit the consideration in the competent court.
(5) No non-exclusive licensee falling under paragraph (4) may work the patented
invention or registered utility model or design, or similar design, unless he/she has
paid consideration or pay such consideration into the competent court.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 139 (Joinder of Petitions for Trial, etc.) (1) If at least two persons intend to file
a petition for trial to invalidate an identical patent under Article 133 (1), 134 (1) or
(2), or 137 (1), or to confirm the scope of rights in a patent under Article 135 (1),
all such petitioners may jointly file a petition for trial.
(2) When a petition is filed for trial against patentees who jointly hold a patent, all
such joint-holders shall be made defendants.
(3) When joint-holders of a patent or an entitlement to a patent file a petition for
trial on the jointly-held right, all joint-holders shall file the petition jointly.
(4) If any of the petitioners referred to in paragraph (1) or (3), or any of the
defendants referred to in paragraph (2) has grounds to suspend or discontinue the
trial, such suspension and discontinuation shall also be valid for all petitioners and
defendants.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 140 (Formalities of Petitions for Trials) (1) A person who intends to file a
petition for trial shall file the petition with the President of KIPT, stating the
following matters:
1. The names and domiciles of the parties (if a party is a corporation, its name and
place of business);
2. The name and the domicile or place of business of the agent, if a party is
represented by an agent (if the agent is a patent firm or a limited-liability patent
firm, its name and place of business, and the name of the designated patent
attorney);
3. A description of the case on trial;
4. The purport of the petition and the grounds for filing the petition.
(2) No amendment to a petition for trial filed under paragraph (1) shall be made to
the intent of the petition: Provided, That the foregoing shall not apply to the
following:
1. Where an amendment (including the addition of patentees, but limited to where
the added patentees consent to the addition, if the petitioner is also a patentee) is
made to correct the description of a patentee, among the parties referred to in
paragraph (1) 1;
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2. Where an amendment is made to amend the grounds for the petition referred to in
paragraph (1) 4;
3. Where a defendant in a trial for which a patentee or exclusive licensee has filed a
petition as the petitioner to seek confirmation of the scope of rights under Article
135, argues that the invention the defendant actually works is different from the
invention regarding which confirmation is sought in the petition (referring to the
invention the petitioner asserts the defendant's) with reference to the specification
or drawings of the invention and so the petitioner amends the specification or
drawings of the invention regarding which confirmation is sought in the petition to
make the specification or drawings conform to the invention that the defendant
actually works.
(3) A petition filed for a trial seeking confirmation of the scope of rights under
Article 135 (1) shall be accompanied by the specification and necessary drawings
with which the patented invention can be compared.
(4) A petition filed under Article 138 (1) for a trial seeking the grant of a non-
exclusive license shall state the following, in addition to the matters specified in
paragraph (1):
1. The number and title of the petitioner's patent that the petitioner intends to work;
2. The number, title, and patent or registration date of the other person's patented
invention or registered utility model or design that the petitioner needs to work;
3. The scope and term of the non-exclusive license of the patented invention or
registered utility model or design and the consideration therefor.
(5) A petition filed under Article 136 (1) for a trial for correction shall be
accompanied by the corrected specification or drawings.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 140-2 (Formalities of Petitions for Trial on Rulings Rejecting Patent
Applications) (1) Notwithstanding Article 140 (1), a person who intends to file a
petition for trial on a ruling rejecting a patent application under Article 132-3 shall
file a petition for the trial with the President of KIPT, stating the following:
1. The name and domicile of the petitioner (if the petitioner is a corporation, his/her
name and place of business);
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2. The name and domicile or place of business of the agent, if the petitioner is
represented by an agent (if the agent is a patent firm or a limited-liability patent
firm, its name and place of business or limited-liability patent firm, and the name of
the designated patent attorney);
3. The filing date and number of the patent application;
4. The title of the invention;
5. The date on which a ruling rejecting the patent application was rendered;
6. A description of the case on trial;
7. The purport of the petition and the grounds for filing the petition.
(2) No amendment to a petition for trial filed under paragraph (1) shall be made as
to the intent of the petition: Provided, That the foregoing shall not apply to the
following:
1. Where an amendment (including the addition of petitioners, but limited to where
the added petitioners consent to the addition) is made to correct the description of
the petitioner referred to in paragraph (1) 1;
2. Where an amendment is made to amend any of the grounds for filing the petition
under paragraph (1) 7.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 141 (Dismissal of Petitions for Trial) (1) In any of the following cases, the
presiding judge shall issue an order to make an amendment within a specified period:
1. Where a petition filed for a trial violates any provision of Article 140 (1) and (3)
through (5) and Article 140-2 (1);
2. Where any of the following events occurs in a trial proceeding:
(a) Where the trial proceeding violates Article 3 (1) or 6;
(b) Where official fees payable under Article 82 have not been paid;
(c) Where the trial proceeding does not conform to any of the formalities
prescribed by this Act or by an order issued under this Act.
(2) If a person in receipt of an order to make an amendment under paragraph (1)
fails to do so within the specified period, the presiding judge shall ruled the petition
for trial dismissed.
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(3) A ruling under paragraph (2) shall be made in writing, stating the grounds
therefor.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 142 (Trial Rulings Rejecting Petitions for Trial with Incurable Defects)
If a petition for trial contains unlawful defects which cannot be corrected by
amendment, such request may be rejected by a ruling without providing the
defendant with an opportunity to submit a written response.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 143 (Administrative Patent Judges) (1) Upon receipt of a petition for trial, the
President of KIPT shall allocate the case to administrative patent judges for a trial.
(2) The qualification for administrative patent judges shall be prescribed by
Presidential Decree.
(3) Administrative patent judges shall maintain independence in performing their
duties to examine a case on trial.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 144 (Designation of Administrative Patent Judges) (1) The President of KIPT
shall designate administrative patent judges who shall form a board under Article 146
for each case on trial.
(2) If any of the administrative patent judges designated under paragraph (1) is
unable to participate in a trial, the President of KIPT may designate another
administrative patent judge in his/her replace.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 145 (Presiding Judges) (1) The President of KIPT shall appoint one of the
administrative patent judges designated under Article 144 (1) as the presiding judge.
(2) The presiding judge shall preside over all matters relating to the case on trial.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 146 (Board for Trial) (1) A trial shall be conducted by a board comprised of
three or five administrative patent judges.
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(2) The board referred to in paragraph (1) shall make rulings by a majority vote.
(3) No consultation among administrative patent judges shall be open to the public.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 147 (Submission of Written Response, etc.) (1) Upon receipt of a petition for
trial, the presiding judge shall serve the defendant with a duplicate of the petition,
and shall provide the defendant with an opportunity to submit a written response
within a specified period.
(2) Upon receipt of a written response, the presiding judge shall serve the
petitioner with a duplicate of the written response.
(3) The presiding judge may directly examine the parties in a trial.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 148 (Abstention by Administrative Patent Judges)
In any of the following cases, an administrative patent judge shall abstain from
participating in a trial:
1. Where an administrative patent judge or his/her current or former spouse is a
party to, or an intervenor in, the case on trial;
2. Where an administrative patent judge is or was a relative of a party to, or an
intervenor in, the case on trial;
3. Where an administrative patent judge is or was the legal representative of a party
to, or an intervenor in, the case on trial;
4. Where an administrative patent judge is summoned as a witness or an expert
witness, or was an expert witness to the case on trial;
5. Where an administrative patent judge is or was the agent of a party to, or an
intervenor in, the case on trial;
6. Where an administrative patent judge was involved as an examiner or
administrative patent judge in a decision or a trial ruling on whether to grant or
refuse a patent in the case on trial;
7. Where an administrative patent judge has a direct interest in the case on trial.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 149 (Requests for Abstention)
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If a party or an intervenor finds that an administrative patent judge falls under a
ground for abstention provided for in Article 148, he/she may file a request for
abstention of the administrative patent judge.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 150 (Challenge of Administrative Patent Judges) (1) If any circumstance exists
wherein the participation of an administrative patent judge would compromise the
fairness of the proceedings in a trial, a party or an intervenor may submit challenge
against the administrative patent judge.
(2) No party or intervenor shall submit challenge against an administrative patent
judge after he/she has made a written or oral statement regarding the case on trial
before the administrative patent judge: Provided, That the foregoing shall not apply
where a party or an intervenor did not know that a ground to challenge existed, or
where a ground to challenge arose subsequently.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 151 (Prima Facie Evidence for Abstention or Challenge) (1) A person who
intends to request an administrative judge to abstain or to challenge an
administrative patent judge under Article 149 or 150 shall submit a written motion
stating the ground therefor, with the President of KIPT: Provided, that such motion
may be submitted orally in a trial.
(2) Prima facie evidence shall be presented for the ground for abstention or
challenge within three days from the filing date of the motion.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 152 (Rulings on Motion for Abstention or Challenge) (1) A ruling on a motion
for abstention or to challenge an administrative patent judge shall be made in a trial.
(2) An administrative patent judge against whom a motion abstention or to challenge
is pending shall not participate in the trial on the abstention or challenge: Provided,
That the administrative patent judge may make arguments thereon.
(3) A ruling under paragraph (1) shall be made in writing, stating the grounds
therefor.
(4) No appeal shall be made against a ruling made under paragraph (1).
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 153 (Suspension of Trial Proceedings)
If a motion for abstention or to challenge is filed, trial proceedings shall be
suspended until a ruling on the motion is made: Provided, That the foregoing shall not
apply in cases of urgency.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 153-2 (Administrative Patent Judges’ Voluntary Withdrawal)
If an administrative patent judge falls under Article 148 or 150, he/she may
voluntarily withdraw himself/herself from the trial of the relevant case with
permission from the President of KIPT therefor.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 154 (Hearings, etc.) (1) Trial proceedings shall be conducted by oral hearing
or examination of documents: Provided, That where a party requests an oral hearing,
trial proceedings shall be conducted by oral hearing except where it is deemed that a
ruling can be made on the basis of examination of documents alone. <Amended by
Act No. 12753, Jun. 11, 2014>
(2) Deleted. <by Act No. 6411, Feb. 3, 2001>
(3) An oral hearing shall be open to the public: Provided, That the foregoing shall
not apply where public order or morality is likely to be compromised. <Amended by
Act No. 12753, Jun. 11, 2014>
(4) When the presiding judge intends to hold an oral hearing under paragraph (1),
he/she shall determine the date and venue for the hearing, and serve the parties and
intervenors with a written notice thereof: Provided, That the foregoing shall not
apply where such notice is given to the parties and intervenors present at an earlier
hearing for the case. <Amended by Act No. 12753, Jun. 11, 2014>
(5) When the presiding judge presides over an oral hearing under paragraph (1),
he/she shall require an official assigned by the President of KIPT to prepare a report
on the proceedings of the hearing and other necessary facts in each hearing.
<Amended by Act No. 12753, Jun. 11, 2014>
(6) The presiding judge and the official who prepares a report on proceedings under
paragraph (5) shall note their names and affix their seals on the report. <Amended
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by Act No. 12753, Jun. 11, 2014>
(7) Articles 153, 154, and 156 through 160 of the Civil Procedure Act shall apply
mutatis mutandis to proceeding reports prepared under paragraph (5). <Amended by
Act No. 12753, Jun. 11, 2014>
(8) Articles 143, 259, 299, and 367 of the Civil Procedure Act shall apply mutatis
mutandis to administrative patent trials. <Amended by Act No. 12753, Jun. 11,
2014>
(9) The presiding judge shall maintain order in the trial tribunal during oral hearings.
<Newly Inserted by Act No. 12753, Jun. 11, 2014>
Article 155 (Intervention) (1) A person entitled to file a petition for trial under Article
139 (1) may intervene in the trial before the closing of hearings.
(2) An intervenor under paragraph (1) may continue trial proceedings even after
the party in whose favor the intervenor enters the proceedings voluntarily withdraws
his/her petition for the trial.
(3) A person who has an interest in the result of a trial may intervene in the trial
proceedings to assist either party before the closing of hearings.
(4) An intervenor under paragraph (3) may take part in all trial proceedings.
(5) If an intervenor under paragraph (1) or (3) has a ground to suspend or
discontinue trial proceedings, such suspension or discontinuance shall be effective
also in relation to the party in whose favor the intervenor entered the proceedings.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 156 (Petitions for Intervention and Rulings thereon) (1) A person who intends
to intervene in a trial shall file a petition for intervention with the presiding judge.
(2) Upon receipt of a petition for intervention, the presiding judge shall serve each
party and other intervenors with a duplicate of the petition for intervention, and shall
provide them with an opportunity to submit a written argument thereon within a
specified period.
(3) Upon receipt of a petition for intervention, a ruling on whether to permit
intervention shall be made in a trial.
(4) A ruling under paragraph (3) shall be made in writing, stating the grounds
therefor.
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(5) No appeal shall be permitted against a ruling made under paragraph (3).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 157 (Examination and Preservation of Evidence) (1) Evidence may be
examined or preserved, upon request by a party, intervenor, or interested party, or
ex officio, in trial proceedings.
(2) The provisions of the Civil Procedure Act concerning the examination and
preservation of evidence shall apply mutatis mutandis to the examination and
preservation of evidence under paragraph (1): Provided, That an administrative
patent judge shall not take any of the following actions:
1. Making a decision to impose an administrative fine;
2. Issuing an order to remand a person in custody;
3. Requiring a person to make a deposit into the competent court.
(3) A request to preserve evidence shall be filed with the President of KIPT, before
filing a petition for trial, or with the presiding judge, if the trial is pending.
(4) Upon receipt of a request to preserve evidence under paragraph (1) before a
petition for trial is filed, the President of KIPT shall appoint an administrative patent
judge to take charge of examining the request.
(5) When the presiding judge, ex officio, examines or preserves evidence under
paragraph (1), he/she shall notify the parties, intervenors, and interested parties of
the results thereof, and shall provide them with an opportunity to submit their
arguments thereon within a specified period.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 158 (Continuation of Trial Proceedings)
The presiding judge may proceed with trial proceedings, even though a party or
intervenor fails to take proceedings by the relevant statutory deadline or specified
deadline, or fails to appear on the date of hearing set under Article 154 (3).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 159 (Ex Officio Examination) (1) Grounds not pleaded by a party or intervenor
may be examined in trial proceedings. In such cases, the parties and intervenors
shall be provided with an opportunity to submit their arguments thereon by a
specified period.
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(2) In a trial, no examination shall be made as to the intention of a claim not
requested by the petitioner.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 160 (Jointer or Separation of Hearings or trial rulings)
Administrative patent judges may conduct hearings or render trial rulings jointly or
separately for at least two trials in which both parties or either party is the same
one.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 161 (Withdrawal of Petitions for Trial) (1) A petition for trial may be voluntarily
withdrawn before a trial ruling becomes final and conclusive: Provided, That once the
defendant has submitted a response, his/her consent shall be obtained to withdraw
such petition.
(2) If a petition has been filed for trial for invalidation under Article 133 (1) or on
confirmation of the scope of rights under Article 135 regarding at least two claims,
the petitioner may withdraw the petition for each claim separately.
(3) If a petition for trial, or each of the claims is withdrawn under paragraph (1) or
(2), the petition shall be deemed never filed.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 162 (Trial Rulings) (1) Except as otherwise expressly provided for in any Act,
a patent trial shall be closed by a trial ruling.
(2) The trial ruling under paragraph (1) shall be made in writing, stating the
following, on which administrative patent judges participating who have rendered the
decision shall note their names and affix their seals thereto:
1. The case number;
2. The names and domiciles of the parties and intervenors (if a party or intervenor
is a corporation, its name and place of business);
3. The name and the domicile or place of business of an agent, if a party or
intervenor is represented by an agent (if the agent is a patent firm or a limited-
liability patent firm, it name and place of business, and the name of the patent
attorney designated for the case);
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4. A description of the case on trial;
5. The text of the trial ruling (including the scope and term of the relevant non-
exclusive license and the consideration therefor, if the ruling is rendered in a trial
under Article 138);
6. Grounds for the trial ruling (including the purport of the petition, and a summary
of the grounds for the petition);
7. The date of the trial ruling.
(3) When a case has been thoroughly reviewed and is ready to be ruled, the
presiding judge shall notify the parties and intervenors of the closing of the trial
review.
(4) If deemed necessary, the presiding judge may reopen a case for review, upon
request from a party or intervenor or ex officio, even after he/she has given notice
of the closing of trial review under paragraph (3).
(5) The trial ruling shall be rendered within 20 days from the date notice of the
closing of trial review is given under paragraph (3).
(6) When a trial ruling or ruling is rendered, the presiding judge shall serve the
parties, intervenors, and the persons whose application for intervention in the trial
was rejected with a certified copy of the trial ruling or ruling, respectively.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 163 (Res Judicata)
If a trial ruling rendered under this Act becomes final and conclusive, no person may
demand re-trial, based on the same facts and evidence: Provided, That the foregoing
shall not apply where the final and conclusive trial ruling is a rejection.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 164 (Relationship to Litigation) (1) A presiding judge may suspend a trial
proceeding until a trial ruling rendered in another trial in connection with the case on
trial or the legal proceedings filed in connection with the relevant case are
completed.
(2) A court may suspend the legal proceedings until a trial ruling rendered on a
patent becomes final and conclusive, if necessary for the legal proceedings.
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(3) Where legal proceedings are filed regarding an infringement of a patent or an
exclusive license, the court shall notify the President of KIPT of the claims asserted
in the legal proceedings The same shall also apply when the legal proceedings are
completed.
(4) Where a petition is filed for trial seeking invalidation of a patent in response to
legal proceedings filed regarding an infringement of a patent or an exclusive license
under paragraph (3), the President of KIPT shall notify the competent court referred
to in paragraph (3) of the claims thereof. This same shall also apply when a decision
or trial ruling dismissing the petition for trial is rendered, or when the petition for
trial is voluntarily withdrawn.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 165 (Costs of Trial) (1) The allocation of cost incurred in relation to a trial
under Article 133 (1), 134 (1) or (2), 135, or 137 (1) shall be determined by a trial
ruling if a trial ruling is rendered at the close of trial, or by decision, if the trial is
closed by a trial ruling.
(2) Articles 98 through 103, 107 (1) and (2), 108, 111, 112, and 116 of the Civil
Procedure Act shall apply mutatis mutandis to costs incurred in relation to a trial
under paragraph (1).
(3) Costs incurred in relation to a trial under Article 132-3, 136, or 138 shall be
borne by the petitioner for the trial.
(4) Article 102 of the Civil Procedure Act shall apply mutatis mutandis to costs to be
borne by a petitioner under paragraph (3).
(5) The amount of costs incurred in a trial shall be determined by the President of
KIPT, upon request from a party, after the relevant trial ruling or decision becomes
final and conclusive.
(6) Relevant provisions of the Costs of Civil Procedure Act shall apply to the scope,
amount, and payment of costs incurred in a trial, and the payment of the cost
required for engaging in procedural acts in a trial, unless such provisions violate the
nature of the cost.
(7) Fees a party has paid or is payable to a patent attorney who has represented the
party in a trial shall be deemed costs incurred in the trial up to the amount specified
by the President of KIPT. Even where a party has been represented by several
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patent attorneys in a trial, the party shall be deemed to have been represented by
one patent attorney for the purposes of this paragraph.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 166 (Title of Enforcement of Trial Costs or Consideration)
A final and conclusive ruling on costs incurred in a trial rendered by the President of
KIPT, or on consideration determined by administrative patent judges under this Act
shall have the same effect as an enforceable title of execution. In such cases, the
enforceable writ shall be issued by a public official of KIPO.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 167 Deleted. <by Act No. 4892, Jan. 5, 1995>
Article 168 Deleted. <by Act No. 4892, Jan. 5, 1995>
Article 169 Deleted. <by Act No. 4892, Jan. 5, 1995>
Article 170 (Application Mutatis Mutandis of Provisions concerning Examination to Trial
on Ruling Rejecting Patent Applications) (1) Article 47 (1) 1 and 2, Articles 51, 63,
63-2, and 66 shall apply mutatis mutandis to a trial on a ruling rejecting a patent
application. In such cases, “amendment under Article 47 (1) 2 or 3" in the main
body of Article 51 (1) shall be construed as "amendment under Article 47 (1) 2
(excluding amendments made before a petition is filed for a trial on a ruling rejecting
a patent application under Article 132-3)," and "Commissioner of KIPO" in the main
body of Article 63-2 as "President of KIPT”, respectively.
(2) Article 63, applicable mutatis mutandis pursuant to paragraph (1), shall apply
only where a ground for rejection is found differently from the ground for the ruling
rejecting a patent application.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 171 (Special Provisions of Trial against Rulings Rejecting Patent Applications)
Article 147 (1) and (2), 155 and 156 shall not apply to a trial against a decision to
reject a patent application or against a decision to refuse to register an extension of
the term of a patent right.
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[This Article Wholly Amended by Act No. 9381, Jan. 30, 2009]
Article 172 (Effects of Examinations)
Patent-related procedures previously taken in the course of examination shall also
remain effective in a trial on a ruling rejecting a patent application or on a ruling
refuse to register the extended term of a patent.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 173 Deleted. <by Act No. 9381, Jan. 30, 2009>
Article 174 Deleted. <by Act No. 9381, Jan. 30, 2009>
Article 175 Deleted. <by Act No. 9381, Jan. 30, 2009>
Article 176 (Revocation of Ruling Rejecting Patent Applications, etc.) (1) When an
administrative patent judge upholds claims asserted in a petition filed for a trial under
Article 132-3, he/she shall render a trial ruling revoking the ruling rejecting the
patent application, or the ruling refusing to register the extended term of the patent.
(2) When an administrative patent judge revokes a ruling rejecting a patent
application or a ruling refusing to register the extended term of the patent in a trial,
he/she may render a trial ruling that the case shall be subject to examination.
(3) In ruling on a trial under paragraph (1) or (2), a ground based on which
revocation is rendered shall be binding upon examiners with respect to the relevant
case.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 177 Deleted. <by Act No. 4892, Jan. 5, 1995>
CHAPTER VIII RETRIAL
Article 178 (Petitions for Retrial) (1) Any party may file a petition for retrial against
the final and conclusive trial ruling.
(2) Articles 451 and 453 of the Civil Procedure Act shall apply mutatis mutandis to
petitions for retrial under paragraph (1).
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 179 (Third Party's Petitions for Retrial) (1) If the parties to a trial acted in
collusion for the purpose of causing a trial ruling to be rendered which infringes a
third party’s right or interest, the third party may file a petition for retrial on the
final and conclusive trial ruling.
(2) In a petition filed for retrial under paragraph (1), the parties to the relevant trial
shall be named as joint defendants.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 180 (Period for Filing Petitions for Retrial) (1) A petition for retrial shall be filed
within 30 days from the date the petitioner becomes aware of the grounds for retrial
after the relevant trial ruling becomes final and conclusive.
(2) Where a petition for retrial is filed on the ground of a defect in the power of
attorney, the period referred to in paragraph (1) shall be counted from the day
immediately after the date the petitioner or his/her legal representative becomes
aware that a trial ruling was rendered, upon receipt of a certified copy of the trial
ruling.
(3) No petition for retrial may be filed after the lapse of three years from the date
the relevant trial ruling becomes final and conclusive.
(4) If the ground for retrial arises after the relevant trial ruling becomes final and
conclusive, the period referred to in paragraph (3) shall be counted from the day
immediately after the date on which such ground arises.
(5) Paragraphs (1) and (3) shall not apply where a petition for retrial is filed on the
ground that the relevant trial ruling conflicts with another trial ruling that had become
final and conclusive before the relevant trial ruling was rendered.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 181 (Restriction on Effects of Patents Reinstated by Retrial) (1) In any of the
following cases, no effect of a patent shall extend to the goods imported, or
domestically produced or acquired in the Republic of Korea, in good faith after the
relevant trial ruling becomes final and conclusive, but before a petition filed for
retrial is registered:
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1. Where an invalidated patent (including a patent with extension of its term
registered) is reinstated in the retrial;
2. Where a trial ruling that a thing did not fall within the scope of rights in a patent
became final and conclusive, but a subsequent ruling rendered in retrial to reverse
the former ruling, becomes final and conclusive;
3. Where the grant of a patent or an extended term of a patent is registered as a
result of retrial on a patent application or on an extension of the term of a patent,
which was rejected by a trial ruling.
(2) No effect of a patent in any case falling under paragraph (1) shall extend to any
of the following:
1. Working the relevant invention in good faith after the relevant trial ruling
becomes final and conclusive, but before the petition filed for retrial is registered;
2. Manufacturing, selling, leasing, or importing, in good faith, a thing used only for
manufacturing the product protected by the patent as an invention, or offering to
sell or lease such thing, in good faith, after the relevant trial ruling becomes final
and conclusive, but before the petition filed for retrial is registered, if the patent is
for the invention of the product.
3. Manufacturing, selling, leasing, or importing, in good faith, a thing used only for
working a process, or offering to sell or lease such thing, in good faith, after the
relevant trial ruling becomes final and conclusive, but before the petition filed for
retrial is registered, if the patent is for the invention of the process.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 182 (Non-Exclusive Licenses for Prior Users of Patent Reinstated through
Retrial)
In any case falling under Article 181 (1), a person who works, or prepares to work,
the relevant patent commercially or industrially, in good faith, in the Republic of
Korea after the relevant trial ruling becomes final and conclusive, but before the
petition filed for retrial is registered shall be granted a non-exclusive license of the
patent within the scope of subject matter of the patented invention that the person
works or prepares to work, or the objectives of the business.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 183 (Non-Exclusive Licenses for Former Right-Holders, Deprived of Non-
Exclusive Licenses by Retrial) (1) If a trial ruling granting a non-exclusive license
to a person under Article 138 (1) or (2) became final and conclusive, but a ruling
reversing such trial ruling rendered in retrial, the person who works, or prepares to
work, the relevant patent commercially or industrially, in good faith, in the Republic
of Korea before the petition filed for retrial was registered shall be granted a non-
exclusive license of the patent or exclusive license existing as at the time the trial
ruling rendered in the retrial becomes final and conclusive, within the scope of the
subject matter of the business relevant to the original non-exclusive license, or the
objectives of the invention.
(2) A person granted a non-exclusive license under paragraph (1) shall pay
equitable remuneration to the patentee or exclusive licensee of the relevant patent.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 184 (Application Mutatis Mutandis of Trial-Related Provisions to Retrial)
The provisions concerning the procedure for trials shall apply mutatis mutandis to
the procedure for retrials on a trial, except where incompatible.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 185 (Application Mutatis Mutandis of the Civil Procedure Act)
Article 459 (1) of the Civil Procedure Act shall apply mutatis mutandis to petitions
for retrial.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER IX LITIGATION
Article 186 (Legal Proceedings against Trial Rulings, etc.) (1) The Patent Court of
Korea shall have exclusive jurisdiction over legal proceedings filed against a trial
ruling or decision dismissing a petition for retrial.
(2) Any of the following persons shall have standing to file legal proceedings under
paragraph (1):
1. A party;
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2. An intervenor;
3. A person whose petition for trial or retrial has been rejected.
(3) Legal proceedings referred to in paragraph (1) shall be filed within 30 days
from the date a certified copy of the relevant trial ruling or decision is served.
(4) The period referred to in paragraph (3) is invariable.
(5) With respect to the invariable period referred to in paragraph (3), the presiding
judge may, ex officio, extent the period, for the benefit of a person living in a remote
area or with poor access to transport.
(6) No legal proceedings may be filed unless related to matters for which a petition
for an administrative patent trial may be filed.
(7) No legal proceedings referred to in paragraph (1) may be independently filed on
a trial ruling on the consideration set under Article 162 (2) 5 or a trial ruling or
decision on costs incurred in trial under Article 165 (1).
(8) A ruling rendered by the Patent Court of Korea under paragraph (1) may be
appealed to the Supreme Court of the Republic of Korea.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 187 (Standing to be Sued)
In legal proceedings filed under Article 186 (1), the Commissioner of KIPO shall be
named as the defendant: Provided, That, the petitioner or defendant shall be sued as
the defendant in legal proceedings filed against a trial ruling rendered in a trial or
retrial under Article 133 (1), 134 (1) or (2), 135 (1), 137 (1), or 138 (1) or (3).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 188 (Notification of Legal Proceedings and Service of Certified Copy of Written
Judgment) (1) Upon receipt of legal proceedings filed under Article 186 (1) or an
appeal under Article 186 (8), the court shall notify the President of KIPT of the
details thereof without delay.
(2) When the legal proceedings filed under the proviso to Article 187 are completed,
the court shall forward a certified copy of the written judgment rendered by the
court at each instance in the case to the President of KIPT without delay.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 188-2 (Abstention, Challenge, or Withdrawal of Technical Examiners) (1)
Article 148 of this Act and Articles 42 through 45, 47, and 48 of the Civil Procedure
Act shall apply mutatis mutandis to the abstention by, or a challenge to, technical
examiners under Article 54-2 of the Court Organization Act.
(2) A decision on abstention by, or a challenge to, technical examiners under
paragraph (1) shall be made in a trial by the court to which the technical examiner
belongs.
(3) If a technical examiner has a ground to abstain, or challenge him/herself, he/she
may voluntarily withdraw from participation in the case on trial with permission from
the Chief Judge of the Patent Court.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 189 (Revocation of Trial Rulings or Decisions) (1) If a court upholds claims
asserted in legal proceedings filed under Article 186 (1), it shall revoke the relevant
trial ruling or decision by ruling.
(2) When a court ruling revoking a trial ruling or decision under paragraph (1)
becomes final and conclusive, administrative patent judges shall review the case and
render another trial ruling or decision.
(3) In ruling on a trial under paragraph (1), the ground based on which revocation
was rendered shall be binding upon KIPT with respect to the relevant case.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 190 (Legal Proceedings against Decisions on Compensation or Consideration)
(1) A person who has an objection to a trial ruling, decision, or adjudication
rendered on compensation or consideration under Article 41 (3) or (4), 106 (3),
106-2 (3), 110 (2) 2, or 138 (4) may file legal proceedings with the competent
court.
(2) Legal proceedings referred to in paragraph (1) shall be filed within 30 days
from the date on which a certified copy of the relevant trial ruling, decision, or
adjudication is served.
(3) The period referred to in paragraph (2) is invariable.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 191 (Defendants in Legal Proceedings on Compensation or Consideration)
In legal proceedings filed under Article 190, any of the following persons shall be
named as a defendant:
1. The head of the central administrative agency or applicant, who is liable to pay
compensation, if such compensation is payable under Article 41 (3) or (4);
2. The head of the central administrative agency, patentee, or exclusive or non-
exclusive licensee, who is liable to pay compensation, if such compensation is
payable under Article 106 (3) or 106-2 (3);
3. The non-exclusive or exclusive licensee, patentee, or owner of a registered
utility model or design, if the legal proceedings are about the consideration under
Articles 110 (2) 2 and 138 (4).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 191-2 (Patent Attorney’s Fees and Costs of Litigation)
Article 109 of the Civil Procedure Act shall apply to fees payable to patent attorneys
representing a party to legal proceedings. In such cases, "attorney at law" shall be
construed as "patent attorney."
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER X INTERNATIONAL APPLICATIONS UNDER PATENT COOPERATION
TREATY
SECTION 1 International Application Procedure
Article 192 (Persons Eligible to File International Applications)
Any of the following persons may file an international application with the
Commissioner of KIPO:
1. A national of the Republic of Korea;
2. A foreigner domiciled or having a place of business in the Republic of Korea;
3. A person not falling under subparagraph 1 or 2, who files an international
application in the name of a representative falling under subparagraph 1 or 2;
4. A person who meets the requirements prescribed by Ordinance of the Ministry of
Trade, Industry, and Energy.
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 193 (International Applications) (1) A person who intends to file an
international application shall submit a patent application prepared in the language
specified by Ordinance of the Ministry of Trade, Industry, and Energy, accompanied
by a description of the invention, the claims, drawings, and an abstract, to the
Commissioner of KIPO.
(2) Every application filed under paragraph (1) shall state the following:
1. An indication that the application is an international application made under the
Patent Cooperation Treaty;
2. The designation of the contracting states to the Patent Cooperation Treaty in
which the protection of the invention claimed in the application is required;
3. The intention, if any, to obtain a regional patent defined under Article 2 (iv) of the
Patent Cooperation Treaty in the contracting states designated under subparagraph
2 (hereinafter referred to as "designated states");
4. The name or title, the domicile or place of business, and the nationality, of the
applicant;
5. The name and the domicile or place of business of an agent, if any;
6. The title of the invention;
7. The name and domicile of the inventor (only applicable where the national law of
a designated statue requires that these indications be furnished).
(3) A description of an invention under paragraph (1) shall clearly and minutely
describe the invention in such manner that any person with ordinary knowledge in
the technical field of the relevant invention can easily work the invention;
(4) Claims referred to in paragraph (1) shall clearly and concisely state the matters
for which protection is sought, and shall be fully supported by the description of the
invention.
(5) Except as otherwise expressly provided for in paragraphs (1) through (4),
matters necessary for filing international applications shall be prescribed by
Ordinance of the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 194 (Recognition, etc. of International Filing Date) (1) The Commissioner of
KIPO shall recognize the date on which an international application reaches KIPO as
the international filing date defined under Article 11 of the Patent Cooperation
Treaty (hereinafter referred to as "international filing date"): Provided, That the
foregoing shall not apply in the following cases:
1. Where the applicant fails to meet the requirements provided for in Article 192;
2. Where the international application is not filed in the language specified in Article
193 (1);
3. Where the international application is not accompanied by a description of the
invention or the claims under Article 193 (1);
4. Where any element listed in Article 193 (2) 1 or 2, and/or the name or title of the
applicant is omitted.
(2) If an international application falls under any subparagraph of paragraph (1), the
Commissioner of KIPO shall order the applicant to amend the defect, in writing,
within a specified period.
(3) If an international application refers to a drawing not included in that application,
the Commissioner of KIPO shall notify the applicant thereof.
(4) If an applicant in receipt of an order to amend under paragraph (2) makes the
amendment within the specified period, the Commissioner of KIPO shall recognize
the date on which the documents regarding the amendment arrive, as the
international filing date, while the Commissioner of KIPO shall recognize the date on
which a drawing arrives, as the international filing date, if a person notified under
paragraph (3) submits the drawing within the period specified by Ordinance of the
Ministry of Trade, Industry, and Energy: Provided, That if an applicant notified under
paragraph (3) fails to submit a drawing within the period specified by Ordinance of
the Ministry of Trade, Industry, and Energy, the reference to the drawing shall be
deemed nonexistent.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 195 (Orders to Amend)
In any of the following cases, the Commissioner of KIPO shall order an applicant to
amend his/her international application within a specified period:
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1. If the title of the invention is omitted;
2. If an abstract is omitted;
3. If the international application violates Article 3 or 197 (3);
4. If the international application fails to comply with any of the requirements
prescribed by Ordinance of the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 196 (International Applications, etc. Deemed Withdrawn) (1) An international
application shall be deemed withdrawn if:
1. The applicant ordered to amend the international application under Article 195
fails to do so within the specified period;
2. The applicant fails to pay an official fee for the international application within the
period specified by Ordinance of the Ministry of Trade, Industry, and Energy, and
his/her international application becomes subject to Article 14 (3) (a) of the Patent
Cooperation Treaty;
3. It is found that the international application accorded an international filing date
under Article 194 becomes subject to any subparagraph of Article 194 (1) during
the period specified by Ordinance of the Ministry of Trade, Industry, and Energy.
(2) If an applicant underpays any fees payable for an international application within
the period specified by Ordinance of the Ministry of Trade, Industry, and Energy, and
his/her international application becomes subject to Article 14 (3) (b) of the Patent
Cooperation Treaty, the designation of the designated state for which the applicant
fails to pay the fees shall be deemed withdrawn.
(3) If an international application or the designation of some of the designated states
is deemed withdrawn under paragraph (1) or (2), the Commissioner of KIPO shall
notify the applicant thereof.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 197 (Representative, etc.) (1) If at least two applicants jointly file an
international application, the procedures prescribed under Articles 192 through 196
and 198 may be initiated by the representative of the applicants.
(2) If at least two applicants jointly file an international application without
appointing a representative, the representative may be designated in the manner
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prescribed by Ordinance of the Ministry of Trade, Industry, and Energy.
(3) If an applicant intends to authorize an agent to initiate the procedure referred to
in paragraph (1), he/she shall appoint a patent attorney as his/her agent, except
where the applicant is represented by a legal representative under Article 3.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 198 (Official Fees) (1) A person who intends to file an international application
shall pay official fees therefor.
(2) Official fees referred to in paragraph (1), the method and period for payment
thereof, and other necessary matters shall be prescribed by Ordinance of the
Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 198-2 (International Searches and International Preliminary Examination) (1)
KIPO shall perform duties as an international search authority and international
preliminary examination authority for international applications under the agreement
entered into with the International Bureau (hereinafter referred to as the
"International Bureau") defined under Article 2 (xix) of the Patent Cooperation
Treaty.
(2) Matters necessary for performing duties referred to in paragraph (1) shall be
prescribed by Ordinance of the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
SECTION 2 Special Provisions on International Patent Applications
Article 199 (Patent Applications based on International Applications) (1) An
international application allocated an international filing date under the Patent
Cooperation Treaty, that has designated the Republic of Korea as a designated state
to obtain a patent in the Republic of Korea shall be deemed a patent application filed
on the international filing date.
(2) Articles 42-2, 42-3, and 54 shall not apply to an international application
deemed a patent application under paragraph (1) (hereinafter referred to as
"international patent application").
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 200 (Special Provisions concerning Inventions Not Deemed Publicly Known, etc.)
Notwithstanding Article 30 (2), a person who seeks the benefit of Article 30 (1) 1
for an invention claimed in an international patent application may submit a written
statement of such intention and documents evidencing relevant facts, to the
Commissioner of KIPO within the period specified by Ordinance of the Ministry of
Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 200-2 (Applications, etc. Substituted by International Patent Applications) (1)
An application filed by the international filing date of an international patent
application shall be deemed a patent application filed under Article 42 (1).
(2) A description of an invention, the claims, and drawings submitted by the
international filing date of an international patent application shall be deemed the
specification and drawings initially accompanying a patent application filed under
Article 42 (1).
(3) In any of the following cases, the abstract or Korean translation of an
international patent application shall be deemed an abstract under Article 42 (2);
1. If the abstract of an international patent application is written in Korean: The
abstract of the international patent application;
2. If the abstract of an international patent application is written in a foreign
language: The Korean translation of the abstract of the international patent
application submitted under Article 201 (1) (referring to the last submitted Korean
translation of the abstract of the international patent application, if a subsequent
Korean translation has been submitted under the main body of Article 201 (3)).
[This Article Newly Inserted by Act No. 12753, Jun. 11, 2014]
Article 201 (Korean Translations of International Patent Applications) (1) An applicant
who has filed an international patent application in a foreign language shall submit, to
the Commissioner of KIPO, a Korean translation of the following documents within
two years and seven months from the priority date (hereinafter referred as "priority
date") defined under Article 2 (xi) of the Patent Cooperation Treaty (hereinafter
referred to as "period for the submission of domestic documents"): Provided, That if
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an applicant has submitted a document under Article 203 (1) to request the
extension of the period for submitting the Korean translation, during the period
commencing one month before the expiration of the period for submitting domestic
documents until the expiration of the period (excluding where a Korean translation is
submitted before submitting the document), the Korean translation may be submitted
by not later than one month from the expiration of the period for submitting domestic
documents:
1. A Korean translation of a description of the invention, claims, and drawings
(limited to the captions in the drawings) submitted by the international filing date;
2. A Korean translation of the abstract of the international patent application.
(2) Notwithstanding paragraph (1), if an applicant who filed an international patent
application in a foreign language has amended any of the claims under Article 19 (1)
of the Patent Cooperation Treaty, the applicant may submit a Korean translation of
the amended claims in lieu of the Korean translation of the claims filed by the
international filing date.
(3) An applicant who has submitted a Korean translation under paragraph (1) may
submit a new translation replacing such Korean translation during the period for
submitting domestic documents (referring to an extension for submitting domestic
documents, if the applicant has submitted the statement of his/her intention under the
proviso to paragraph (1); the same shall apply hereafter in this Article): Provided,
That the foregoing shall not apply where the applicant has filed a request for
examination of the application.
(4) If an applicant referred to in paragraph (1) fails to submit a Korean translation
of a description of the invention and the claims under paragraph (1) within the period
for submitting domestic documents, the applicant shall be deemed to have withdrawn
his/her international patent application.
(5) If a patent applicant submits a Korean translation (referring to the last submitted
Korean translation, if a subsequent Korean translation has been submitted under the
main body of paragraph (3); hereafter referred to as "final Korean translation" in this
Article) of a description of the invention, claims, or drawings (limited to the captions
in the drawings) under paragraph (1) by the last date of the period for submitting
domestic documents (referring to the filing date of a petition, if the patent applicant
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files a request for examination of the application during the period for submitting
domestic documents; hereinafter referred to as "reference date"), the patent
applicant shall be deemed to amend the description of the invention, claims, or
drawings on the international filing date under Article 47 (1) according to a final
Korean translation.
(6) A patent applicant may correct any error in a final Korean translation in the
manner prescribed by Ordinance of the Ministry of Trade, Industry, and Energy
during the period in which the patent applicant is permitted to make amendments
under Article 47 (1) or 208 (1). In such cases, paragraph (5) shall not apply to a
corrected Korean translation.
(7) Article 204 (1) and (2) shall not apply where a Korean translation of the
amended claims is submitted under paragraph (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 202 (Special Provisions concerning Priority Claims by Patent Applications, etc.)
(1) Articles 55 (2) and 56 (2) shall not apply to international patent applications.
(2) If a patent application claiming priority is an international application,
"specification or drawings accompanying the initial patent application" in Article 55
(4) shall be construed as “description of the invention, claims, or drawings
submitted by the international filing date," and "laid open" shall be construed as "laid
open or published internationally under Article 21 of the Patent Cooperation Treaty",
respectively, for the purposes of the aforesaid paragraph: Provided, That Article 55
(4) shall not apply where such an international patent application is deemed
withdrawn under Article 201 (4).
(3) For the purposes of Article 55 (1), (3) through (5), and Article 56 (1), the
following shall apply if an earlier application is an international patent application or
an international application for registration of a utility model under Article 34 (2) of
the Utility Model Act:
1. "Specification or drawings accompanying an initial application" in the main body of
Article 55 (1), Article 55 (3), and the main body of Article 55 (5) shall be
construed as either of the following:
(a) If the earlier application is an international patent application: "Description of
the invention claimed in the international application, the scope of claims, or
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drawings submitted by the international filing date";
(b) If the earlier application is an international application for registration of a
utility model under Article 34 (2) of the Utility Model Act: "Description of the
design claimed in the international application, the scope of claims, or drawings
submitted by the international filing date";
2. "Specification or drawings initially accompanying the earlier application" in Article
55 (4) shall be construed as either of the following, and "laid open" shall be
construed as "laid open or published internationally under Article 21 of the Patent
Cooperation Treaty" with respect to the earlier application;
(a) If the earlier application is an international patent application: "Description of
the invention claimed in the earlier application, the scope of claims, or drawings,
filed by the international filing date as an international application";
(b) If the earlier application is an international application for registration of a
utility model under Article 34 (2) of the Utility Model Act: "Description of the
design claimed in the earlier application filed by the international filing date as an
international application, the scope of claims, or drawings";
3. "At the time one year and three months elapse from the filing date of the earlier
application" in the main body of Article 56 (1) shall be construed as "after the lapse
of one year and three months from the international filing date or the reference
date under 201 (5) of this Act or Article 35 (5) of the Utility Model Act, whichever
comes later."
(4) For the purposes of Article 55 (1), (3) through (5), and Article 56 (1), the
following shall apply if the earlier application filed under Article 55 (1) is an
international patent application deemed a patent application under Article 214 (4) of
this Act or an application for registration of a utility model under Article 40 (4) of
the Utility Model Act:
1. "Specification or drawings accompanying an initial application" in the main body of
Article 55 (1), Article 55 (3), and the main body of Article 55 (5) shall be
construed as either of the following:
(a) If the earlier application is an international patent application deemed a patent
application under Article 214 (4): "Description of the invention claimed in the
earlier application, the scope of claims, or drawings on the date that would have
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been recognized as the international filing date under Article 14 (4)";
(b) If the earlier application is an international application deemed an application
for registration of a utility model under Article 40 (4) of the Utility Model Act:
"Description of the design claimed in the international application, the scope of
claims, or drawings on the date that would have been recognized as the
international filing date under Article 40 (4) of the Utility Model Act ";
2. "Specification or drawings initially accompanying the earlier application" in Article
55 (4) shall be construed as either of the following:
(a) If the earlier application is an international patent application deemed a patent
application under Article 214 (4): "Description of the invention claimed in the
earlier application filed as an international application, the scope of claims, or
drawings on the date that would have been recognized as the international filing
date under Article 214 (4)";
(b) If the earlier application is an international application deemed an application
for registration of a utility model under Article 40 (4) of the Utility Model Act:
"Description of the design claimed in the earlier application filed as an
international application, the scope of claims, or drawings on the date that would
have been recognized as the international filing date under Article 40 (4) of the
Utility Model Act";
3. "At the time one year and three months lapse from the filing date" in the main
body of Article 56 (1) shall be construed as "after the lapse of one year and three
months from the date that would have been recognized as the international filing
date under Article 214 (4) of this Act or Article 40 (4) of the Utility Model Act or
the date on which a decision is made under Article 214 (4) of this Act or Article 40
(4) of the Utility Model Act, whichever comes later."
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 203 (Submission of Documents) (1) An international patent applicant shall
submit to the Commissioner of KIPO, the following matters in writing within the
period for submitting domestic documents. In such cases, an applicant who has filed
an international patent application in a foreign language shall also submit a Korean
translation of the international patent application under Article 201 (1):
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1. The name and domicile of the applicant (if the applicant is a corporation. its name
and place of business);
2. The name and the domicile or place of business of the agent, if the applicant is
represented by an agent (if the agent is a patent firm or a limited-liability patent
firm, its name and place of business, and the name of the designated patent
attorney);
3. The title of the invention;
4. The name and domicile of the inventor;
5. The international filing date and the international application number.
(2) If an applicant requests an extension of the period for submitting the Korean
translation under the proviso to Article 201 (1) by the document submitted under the
former part of paragraph, the applicant need not submit a Korean translation,
notwithstanding the latter part of paragraph (1).
(3) The Commissioner of KIPO shall request an applicant to make an amendment
within a specified period in either of the following circumstances:
1. Where an applicant fails to submit the document required under the former part of
paragraph (1) during the period for submitting domestic documents;
2. Where the document submitted under the former part of paragraph (1) does not
comply with the formalities prescribed by this Act or by an order issued under this
Act;
(4) If a person requested to make an amendment under paragraph (3) fails to do so
within the specified period, the Commissioner of KIPO may invalidate the
international patent application filed by the person.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 204 (Amendments after Receipt of International Search Reports) (1) If an
international patent applicant amends any of the claims in his/her international patent
application after having received the international search report under Article 19 (1)
of the Patent Cooperation Treaty, he/she shall submit the following documents to the
Commissioner of KIPO by the reference date (referring to the date a request for
examination of the application is filed, if the reference date is the filing date of the
request for the examination of the application; the same shall apply hereafter in this
Article and Article 205):
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1. If he/she has filed an international application in a foreign language: A Korean
translation of the amendment;
2. If he/she has filed an international application in Korean: A copy of the
amendment.
(2) When a Korean translation or a copy of an amendment is submitted under
paragraph (1), the claims referred to in Article 47 (1) shall be deemed amended as
stated in the Korean translation or said copy of the amendment: Provided, That the
claims shall be deemed amended as stated in the amendment, if the amendment
(limited to where an international patent application has been filed in Korean)
reaches KIPO by the reference date under Article 20 of the Patent Cooperation
Treaty.
(3) Where an international patent applicant has filed with the International Bureau, a
brief statement under Article 19 (1) of the Patent Cooperation Treaty, he/she shall
submit the following documents to the Commissioner of KIPO by the reference date:
1. If he/she has filed an international application in a foreign language: A Korean
translation of the brief statement;
2. If he/she has filed an international application filed in Korean: A copy of the brief
statement.
(4) If an international patent applicant fails to take the procedure under paragraph
(1) or (3) by the reference date, the amendment or brief statement prescribed under
Article 19 (1) of the Patent Cooperation Treaty shall be deemed never submitted:
Provided, That the foregoing shall not apply where the amendment or brief statement
of an international patent application filed in Korean reaches KIPO by the reference
date under Article 20 of the Patent Cooperation Treaty.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 205 (Amendments before Preparation of International Preliminary Examination
Reports) (1) Where an international patent applicant amends the description of the
invention claimed in his/her international patent application, the claims, or drawings
under Article 34 (2) (b) of the Patent Cooperation Treaty, he/she shall submit the
following documents to the Commissioner of KIPO by the reference date:
1. If the amendment is in a foreign language: A Korean translation of the
amendment;
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2. If the amendment is in Korean: A copy of the amendment.
(2) When a Korean translation or a copy of an amendment is submitted under
paragraph (1), the specification or drawings referred to in Article 47 (1) shall be
deemed amended as stated in the Korean translation or copy of the amendment:
Provided, That if such amendment (limited to where the amendment is in Korean) is
delivered to KIPO by the reference date under Article 36 (3) (a) of the Patent
Cooperation Treaty, the specification or drawings shall be deemed amended as
stated in the amendment.
(3) If an international patent applicant fails to take the procedure under paragraph
(1) by the reference date, the amendment referred to in Article 34 (2) (b) of the
Patent Cooperation Treaty shall be deemed never submitted: Provided, That the
foregoing shall not apply where the amendment (limited to where the amendment is
in Korean) is delivered to KIPO by the reference date under Article 36 (3) (a) of the
Patent Cooperation Treaty.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 206 (Special Provisions concerning Patent Administrators for Overseas
Residents) (1) Notwithstanding Article 5 (1), an overseas resident who has filed an
international patent may initiate a patent-related procedure by the reference date,
unless represented by a patent administrator.
(2) An overseas resident who has submitted a Korean translation under Article 201
(1) shall appoint a patent administrator and report the appointment to the
Commissioner of KIPO by the deadline specified by Ordinance of the Ministry of
Trade, Industry, and Energy.
(3) An international application shall be deemed withdrawn if the appointment of a
patent administrator is not reported under paragraph (2).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 207 (Special Provisions concerning Timing and Effects of Laying Open
Applications) (1) Where Article 64 (1) applies to laying-open of an international
patent application, "after the lapse of one year and six months from the date
specified in any of the following" shall be construed as "after the end of the period
for submitting domestic documents (referring to an extension for submitting a
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Korean translation, if a written request for an extension of such period has been
submitted under the proviso to Article 201 (1); the same shall apply hereafter in this
paragraph) (or after the lapse of one year and six months from the priority date or
the filing date of a request for examination of the application, whichever comes later,
if an international patent application is published internationally under Article 21 of
the Patent Cooperation Treaty after the international patent applicant files a request
for examination of the application during the period for submitting domestic
documents)."
(2) Notwithstanding paragraph (1), if an international patent application filed in
Korean has been published internationally under Article 21 of the Patent Cooperation
Treaty before the application is laid open under paragraph (1), the international
patent application shall be deemed laid open at the time of international publication.
(3) After an international patent application is published (referring to international
publication under Article 21 of the Patent Cooperation Treaty, if the international
patent application is in Korea; hereafter the same shall apply in this Article), the
applicant of the international patent application may issue a person who has
commercially or industrially worked the invention a written warning that an
international patent application is pending for the invention.
(4) The applicant of an international patent application may claim compensation,
equivalent to an amount to which he/she is usually entitled for working of the
patented invention, against a person who has commercially or industrially worked the
invention claimed in the international patent application, even after receiving a
written warning under paragraph (1) or knowing that the international patent
application for the invention has been published, for a period from the time the
person receives the written warning, or becomes aware thereof until the time the
grant of the patent is registered: Provided, That the right to claim compensation may
be exercised only after the grant of the patent on the invention is registered.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 208 (Special Provisions concerning Amendments) (1) Notwithstanding Article
47 (1), no international patent application may be amended (excluding amendments
under Articles 204 (2) and 205 (2)), unless all of the following requirements are
satisfied: <Amended by Act No. 12753, Jun. 11, 2014>
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1. Official fees is to be fully paid under Article 82 (1);
2. A Korean translation is to be submitted under Article 201 (1): Provided, That the
foregoing shall not apply to an international patent application filed in Korean;
3. The reference date shall have passed (referring to the filing date of a request for
examination of the application, if filing date of a request for examination of an
application is the reference date).
(2) Deleted. <by Act No. 6411, Feb. 3, 2001>
(3) When the former part of Article 47 (2) applies to the amendable scope of an
international patent application filed in a foreign language, "specification or drawings
accompanying the initial patent application" shall be construed as "description of the
invention, the scope of claims, or drawings, submitted by the international filing
date." <Amended by Act No. 12753, Jun. 11, 2014>
(4) Where the latter part of Article 47 (2) applies to the amendable scope of an
international patent application filed in a foreign language, "patent application in a
foreign language" shall be construed as "international patent application in a foreign
language," and "final Korean translation (referring to the corrected Korean
translation, if a correction is made under the former part of Article 42-3 (6)) or in
the drawings (excluding captions in the drawings) accompanying the initial patent
application" as "final Korean translation under Article 201 (5) (referring to the
corrected Korean translation, if a correction is made under the former part of Article
201 (6)) or in the drawings (excluding captions in the drawings) submitted by the
international filing date", respectively. <Newly Inserted by Act No. 12753, Jun. 11,
2014>
(5) Deleted. <by Act No. 6411, Feb. 3, 2001>
Article 209 (Restriction on Timing for Conversion of Applications)Notwithstanding
Article 53 (1) of this Act, if an applicant intends to convert his/her international
application deemed an application for registering a utility model filed on the
international filing date under Article 34 (1) of the Utility Model Act, into a patent
application, he/she may do so only after he/she fully pays the official fees under
Article 17 (1) of the Utility Model Act, and submits the Korean translation (not
applicable to an international application for registering a utility model filed in
Korean) under Article 35 (1) of the aforesaid Act (or after a decision is rendered
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under Article 40 (4) of the Utility Model Act, if the converted international
application is deemed filed on the date that would have been recognized as the
international filing date under the aforesaid paragraph of the aforesaid Act).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 210 (Restriction on Timing for Filing Requests for Examination of Applications)
Notwithstanding Article 59 (2), a request for examination of an international patent
application may be filed at either of the following times:
1. After a Korean translation is submitted under Article 201 (1) (excluding an
international patent application filed in Korean) and official fees under Article 82
(1) are fully paid, if the request is made by the applicant of the international patent
application;
2. After the lapse of the period for submitting domestic documents (referring to an
extension for submitting Korean translations, if a written request has been filed for
an extension of such period under the proviso to Article 201 (1)).
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 211 (Orders to Submit References Cited in International Search Reports, etc.)
The Commissioner of KIPO may require the applicant of an international patent
application to submit copies of the references cited in the international search report
under Article 18 of the Patent Cooperation Treaty, or the international preliminary
examination report under Article 35 of the aforesaid Treaty by a specified deadline.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 212 Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 213 Deleted. <by Act No. 12753, Jun. 11, 2014>
Article 214 (International Applications Decided as Patent Applications) (1) If any of
the following applies to an international application (limited to a patent application)
that includes the Republic of Korea as a designated state under Article 4 (1) (ii) of
the Patent Cooperation Treaty, the applicant of the international application may
request the Commissioner of KIPO to decide as provided for in Article 25 (2) (a) of
the aforesaid Treaty in the manner prescribed by Ordinance of the Ministry of Trade,
Industry, and Energy within the period specified by Ordinance of the Ministry of
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Trade, Industry, and Energy:
1. Where the receiving Office defined under Article 2 (xv) of the Patent Cooperation
Treaty has refused as provided for in Article 25 (1) (a) of the same Treaty
regarding the international application;
2. Where the receiving Office defined under Article 2 (xv) of the Patent Cooperation
Treaty has declared as provided for in Article 25 (1) (a) or (b) of the aforesaid
Treaty regarding the international application;
3. Where the International Bureau has recognized the international application under
Article 25 (1) (a) of the aforesaid Treaty.
(2) A person who intends to make a request under paragraph (1) shall submit to the
Commissioner of KIPO a Korean translation of a description of the invention, scope
of claims, or drawings (limited to the text matter thereof), and other documents
specified by Ordinance of the Ministry of Trade, Industry, and Energy as relevant to
the international application.
(3) Upon receipt of a request under paragraph (1), the Commissioner of KIPO shall
decide whether the refusal, declaration, or recognition of the relevant application has
been made appropriately in accordance with the Patent Cooperation Treaty and
regulations thereunder.
(4) If the Commissioner of KIPO has decided under paragraph (3) that the refusal,
declaration, or recognition has not been made appropriately in accordance with the
Patent Cooperation Treaty and regulations thereunder, the international application at
issue shall be deemed a patent application filed on the date which would have been
recognized as the international filing date, if no refusal, declaration, or recognition
had been made with respect of the international application.
(5) When the Commissioner of KIPO makes a decision on appropriateness under
paragraph (3), he/she shall serve a certified copy of the decision on the applicant of
the international patent at issue.
(6) Articles 199 (2), 200, 200-2, 201 (5) through (7), 202 (1) and (2), 208, and
210 shall apply mutatis mutandis to international applications deemed patent
applications under paragraph (4).
(7) For the purposes of laying open an international application deemed a patent
application under paragraph (4), "date specified in any of the following" in Article 64
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(1) shall be construed as "priority date under Article 201 (1).”
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER XI SUPPLEMENTARY PROVISIONS
Article 215 (Special Provisions concerning Patents or Patent Rights with at Least Two
Claims)
For the purposes of Article 65 (6), 84 (1) 2, 85 (1) 1 (limited to extinguishment),
101 (1) 1, 104 (1) 1, 3 or 5, 119 (1), 133 (2) or (3), 136 (6), 139 (1), 181, or 182
of this Act, or Article 26 (1) 2, 4, or 5 of the Utility Model Act, a patent or a patent
right with at least two claims shall be deemed granted for each claim.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 215-2 (Special Provisions concerning Registration of Patent Applications with at
Least Two Claims) (1) When a person who has received a decision on the grant of a
patent for a patent application with at least two claims pays registration fees, he/she
may relinquish any of the claims individually.
(2) Matters necessary for relinquishing claims under paragraph (1) shall be
prescribed by Ordinance of the Ministry of Trade, Industry, and Energy.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 216 (Inspection of Documents, etc.) (1) A person who intends to obtain a
certificate with respect to a patent or trial, a certified transcript or abstract of a
document, or inspect or photocopy the entries in Patent Register or documents may
file a request therefor with the Commissioner of KIPO or the President of KIPT.
(2) Upon receipt of a request under paragraph (1), the Commissioner of KIPO or
the President of KIPT may refuse to grant permission as requested, if the documents
requested are related to a patent application, a grant of patent for which has not been
registered or a patent application that has not been laid open, or a trial on a ruling
rejecting a patent application under Article 132-3, or if the requested information
compromise public order or morality, or is likely to harm public health.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 217 (Prohibition of Disclosure, Appraisal, etc, of Documents Relating to Patent
Applications, etc.) (1) Documents relating to patent applications, examinations,
trials, or retrials or the Patent Register may be disclosed only in any of the following
circumstances:
1. Where documents relating to patent applications or examinations are disclosed for
the purpose of searching prior art, etc. under Article 58 (1) or (2);
2. Where documents relating to patent applications, examinations, trials, and retrials
or the Patent Register are disclosed to entrust the digitization of patent documents
under Article 217-2 (1);
3. Where documents relating to patent applications, examinations, trials, and retrials
or the Patent Register are disclosed for the online remote service under Article 32
(2) of the Electronic Government Act.
(2) No expert opinion, testimony, or answer may be given in response to an inquiry
about a case for which a patent application, examination, trial, or retrial is pending, or
an inquiry about a decision or trial ruling on whether to grant or refuse a patent, or
about the details of a decision.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 217-2 (Agency for Digitization of Patent Documents) (1) If deemed necessary
for efficiently conducting patent-related procedures, the Commissioner of KIPO may
entrust the digitization of documents relating to patent applications, examinations,
trials, and retrials or the Patent Register or any similar tasks (hereinafter referred to
"digitization of patent documents") through an electronic information processing
system and technologies applied to the electronic information processing system to a
corporation, equipped with the facilities and human resources specified by Ordinance
of the Ministry of Trade, Industry, and Energy. <Amended by Act No. 12753, Jun.
11, 2014>
(2) Deleted. <by Act No. 7871, Mar. 3, 2006>
(3) No current or former executive or employee of the corporation entrusted with
the digitization of patent documents under paragraph (1) (hereinafter referred to as
"agency entrusted with the digitization of patent documents") shall divulge
confidential information on any invention claimed in a patent application, he/she has
become aware of in the course of performing his/her duties, or misappropriate such
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confidential information. <Amended by Act No. 12753, Jun. 11, 2014>
(4) Pursuant to paragraph (1), the Commissioner of KIPO may digitize patent
applications not submitted in electronic document under Article 28-3 (1), or other
documents specified by Ordinance of the Ministry of Trade, Industry, and Energy and
may store such documents as files of the electronic information processing system
operated by KIPO or KIPT. <Amended by Act No. 12753, Jun. 11, 2014>
(5) The data stored as files referred to in paragraph (4) shall be deemed the same
as that recorded in the relevant paper documents. <Amended by Act No. 12753, Jun.
11, 2014>
(6) The methods for digitization of patent documents, and other matters necessary
for the digitization of patent documents shall be prescribed by Ordinance of the
Ministry of Trade, Industry, and Energy. <Amended by Act No. 12753, Jun. 11,
2014>
(7) If the agency entrusted with the digitization of patent documents fails to meet
any of the standards for facilities and human resources prescribed by Ordinance of
the Ministry of Trade, Industry, and Energy under paragraph (1), the Commissioner
of KIPO may request the agency to take measures for rectification, or may revoke
the entrustment of digitization of patent documents, if such agency fails to take
measures as requested. In such cases, the Commissioner of KIPO shall provide the
agency with an opportunity to explain before revocation. <Amended by Act No.
12753, Jun. 11, 2014>
[This Article Newly Inserted by Act No. 5329, Apr. 10, 1997]
Article 218 (Service of Documents)
Matters necessary for the procedure for service of documents, etc. specified in this
Act shall be prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 219 (Public Notice in Lieu of Service) (1) If it is impossible to serve a
document on a person because his/her address or place of business of the person is
unknown, public notice shall be given in lieu of service.
(2) Public notice in lieu of service shall be given by publishing the statement that
the relevant document is available at any time for delivery to the person on whom it
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is to be served, in the Patent Gazette.
(3) Initial public notice in lieu of service shall take effect two weeks after the date
of publication in the Patent Gazette: Provided, That subsequent public notice in lieu
of service to the same party, shall take effect on the day immediately after the date
of publication in the Patent Gazette.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 220 (Service on Overseas Residents) (1) Documents to be served on an
overseas resident shall be served on his/her patent administrator, if the overseas
resident has appointed a patent administrator.
(2) Documents to be served on an overseas resident may be posted to the overseas
resident by registered airmail, if the overseas resident has not appointed a patent
administrator.
(3) Documents posted by registered airmail under paragraph (2) shall be deemed
served on the mailing date of the documents.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 221 (Patent Gazette) (1) The Commissioner of KIPO shall publish the Patent
Gazette, as prescribed by Presidential Decree.
(2) The Patent Gazette may be published by electronic media, as prescribed by
Ordinance of the Ministry of Trade, Industry, and Energy.
(3) If the Patent Gazette is published by electronic media, the Commissioner of
KIPO shall give public notice of the issuance of the Patent Gazette, an executive
summary thereof, and matters concerning service via information and
communications networks.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 222 (Submission, etc. of Documents)
The Commissioner of KIPO or an examiner may require a party to submit documents
and articles necessary for any procedure, other than a procedure for trial or retrial.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 223 (Patent Marking)
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A patentee, or exclusive or non-exclusive licensee may mark his/her products as
patented in any of the following relevant manners:
1. If the patent is for the invention of the products: The patent shall be marked on
the products;
2. If the patent is for the invention of the process for manufacturing the products:
The patent shall be marked on the products manufactured by the process;
3. If it is impossible to mark the patent on the products: The patent shall be marked
on the containers or packaging of the products.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 224 (Prohibition of False Marking)No person shall:
1. Mark "patented" or "patent pending" or any similar misleading word on any
unpatented thigh, any good for which no patent application has been filed, any
article produced by any unpatented process or by any process for which no patent
application has been filed, or any container or packaging of such article;
2. Sell, lease, or display a thing bearing a marking referred to in subparagraph 1;
3. Mark a thing referred to in subparagraph 1 with any such words indicating that
the thing is patented, a patent is pending for the thing, or the thing has been
manufactured by a patented process or by a process for which a patent is pending,
or with any similar misleading words, in an advertisement, sign, or name tag to
manufacture, use, sell, or lease the thing;
4. Mark any unpatented process or any process for which no patent application has
been filed, as "patented" or "patent pending," or any similar misleading words, in an
advertisement, sign, or name tag to use, sell, or lease the process.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 224-2 (Unappealability) (1) No appeal may be filed under any other Act
against a decision dismissing an amendment without prejudice, a decision or trial
ruling on patentability, or a decision dismissing a petition for trial or retrial without
prejudice, and no appeal may be filed under any other Act against any disposition
against which no appeal is permitted under this Act.
(2) An appeal against any disposition, other than those referred to in paragraph (1),
shall be governed by the Administrative Appeals Act or the Administrative Litigation
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Act.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 224-3 (Orders to Maintain Confidentiality) (1) If a party establishes a prima
facie case of the party's trade secret (referring to the trade secret defined under
subparagraph 2 of Article 2 of the Unfair Competition Prevention and Trade Secret
Protection Act; the same shall apply hereinafter) on any of the following grounds in
legal proceedings on infringement of a patent or exclusive license, the court may,
upon the party's request, order the other party (if the party is a corporation, its
representative), the person who represents the other party in the legal proceedings,
or any other person who becomes aware of the trade secret in the course of the legal
proceedings not to use the trade secret for any purpose other than continuance of
the legal proceedings, and not to disclose the trade secret to any person other than
the persons in receipt of the order under this paragraph in connection with the trade
secret: Provided, That the foregoing shall not apply where the other party (if the
party is a corporation, its representative), the person who represents the other party
in the legal proceedings, or any other person who becomes aware of the trade secret
in the course of the legal proceedings has already acquired the trade secret by any
means other than inspection of trial briefs and examination of evidence referred to in
subparagraph 1 before the request is filed:
1. The trade secret is included in a trial brief already submitted or to be submitted,
or in an evidentiary material already examined or to be examined;
2. The trade secret referred to in subparagraph 1 is likely to hinder the party's
business operations, if used or disclosed for any purpose other than the
continuance of the relevant legal proceedings, and thus the use or disclosure of
such trade secret needs to be restricted to prevent such hindrance.
(2) A request for an order under paragraph (1) (hereinafter referred to as "order to
maintain confidentiality") shall be filed in writing, stating the following matters:
1. The person to whom the order to maintain confidentiality shall be issued;
2. Facts sufficient for specifying the trade secret to be protected by the order to
maintain confidentiality;
3. The facts relevant to the ground under any subparagraph of paragraph (1).
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(3) When a court decides to issue an order to maintain confidentiality, it shall serve
a written decision on the persons to whom the order to maintain confidentiality is
issued.
(4) An order to maintain confidentiality shall take effect when the written decision
under paragraph (3) is served on the persons to whom the order to maintain
confidentiality is issued.
(5) An immediate appeal may be filed against a decision to reject a request for an
order to maintain confidentiality, with or without prejudice.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 224-4 (Revocation of Orders to Maintain Confidentiality) (1) If a person who
has filed a request for an order to maintain confidentiality or a person to whom an
order to maintain confidentiality was issued fails or ceases to meet any of the
requirements prescribed under Article 224-3 (1), he/she may file a request to
revoke the order to maintain confidentiality, with the court that keeps the relevant
litigation records (or the court that issued the order to maintain confidentiality, if no
court keeps the litigation records).
(2) When a court makes a decision on a request to revoke an order to maintain
confidentiality, it shall serve a written decision on the applicant for request and
adverse parties.
(3) An immediate appeal may be filed against a decision on revocation of an order to
maintain confidentiality.
(4) A decision to revoke an order to maintain confidentiality shall take effect when it
becomes final and conclusive.
(5) When a court decides to revoke an order to maintain confidentiality, it shall
immediately notify the persons to whom the order to maintain confidentiality of the
relevant trade secret was issued, of the fact that a decision is made to revoke the
order to maintain confidentiality, in addition to the applicant for request to revoke the
order to maintain confidentiality and adverse parties.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 224-5 (Notice, etc. on Request for Inspection, etc. of Litigation Records) (1)
If a decision under Article 163 (1) of the Civil Procedure Act is rendered with
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respect to litigation records concerning legal proceedings in which an order to
maintain confidentiality had been issued (excluding legal proceedings in which an
order to maintain confidentiality has been revoked), and an applicant for request to
inspect confidential records, etc. defined under the aforesaid paragraph, is not
subject to the order to maintain confidentiality in the relevant legal proceedings, a
Grade IV, V, VI, or VII court official (hereinafter referred to as "court official") shall
notify the applicant for request under Article 163 (1) of the Civil Procedure Act
(excluding the applicant for request for inspection, etc.; the same shall also apply
hereafter in paragraph (3)) of the fact that the request for inspection, etc. was filed
immediately after the request.
(2) In cases falling under paragraph (1), no court official shall permit an applicant
for request to inspect confidential records under paragraph (1) to inspect such
confidential records before two weeks elapse from the filing date of the request
under paragraph (1) (or before the date the decision on the request to issue an order
to maintain confidentiality to the applicant for request under paragraph (1) becomes
final and conclusive, if the request for the order to maintain confidentiality was filed
before the date).
(3) Paragraph (2) shall not apply where an applicant for request for inspection, etc.
under paragraph (1) is permitted to inspect the confidential records under paragraph
(1) with the consent of all parties who filed a request under Article 163 (1) of the
Civil Procedure Act.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
CHAPTER XII PENALTY PROVISIONS
Article 225 (Infringement) (1) Any person who infringes a patent or an exclusive
license shall be punished by imprisonment for up to seven years, or by a fine not
exceeding 100 million won.
(2) No person shall be prosecuted for committing a crime under paragraph (1)
without a criminal complaint filed by the injured party.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
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Article 226 (Divulgence of Confidential Information, etc.)
Any current or former employee of KIPO or KIPT who divulges or misappropriates
confidential information he/she has become aware of about a patent claimed in a
patent pending (including a patent claimed in an international application pending) in
the course of performing his/her duties shall be punished by imprisonment for up to
five years, or by a fine not exceeding 50 million won.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 226-2 (Executives and Employees of Specialized Organizations, etc. Deemed
Public Officials)
Any current or former executive or employee of a specialized agency designated
under Article 58 (1), or an agency for digitization of patent documents shall be
deemed a current or former employee of KIPO or KIPT for the purposes of Article
226.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 227 (Perjury) (1) Any witness, expert witness, or interpreter who makes a
false statement under oath taken under this Act in his/her testimony, expert opinion,
or interpretation before KIPT shall be punished by imprisonment for up to five years,
or by a fine not exceeding ten million won.
(2) If a person who has committed a crime prescribed under paragraph (1) confess
before the trial ruling on the relevant case becomes final and conclusive, the
sentence upon him/her may be mitigated or remitted.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 228 (False Marking)
Any person who violates Article 224 shall be punished by imprisonment for up to
three years, or by a fine not exceeding 20 million won.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 229 (Fraud)
Any person who obtains a patent, registration of an extension of a patent, or a trial
ruling by fraudulent or other illegal means shall be punished by imprisonment for up
to three years, or by a fine not exceeding 20 million won.
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[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 229-2 (Breaches of Orders to Maintain Confidentiality) (1) Any person who
breaches an order to maintain confidentiality issued under Article 224-3 (1), inside
or outside of the Republic of Korea, without just grounds shall be punished by
imprisonment for up to five years, or by a fine not exceeding 50 million won.
(2) No person shall be prosecuted for committing a crime under paragraph (1)
without a criminal complaint filed by the person who has requested to issue the order
to maintain confidentiality.
[This Article Newly Inserted by Act No. 11117, Dec. 2, 2011]
Article 230 (Joint Penalty Provisions)
If the representative of a corporation or an agent, employee, or other servant of the
corporation or an individual commits an offence prescribed under Article 225 (1),
228, or 229 in connection with the business of the corporation or the individual, not
only shall such offender be punished, but the corporation also shall be punished by
the fine prescribed in the following subparagraph, and the individual by the fine
prescribed in the relevant Article: Provided, That the foregoing shall not apply where
such corporation or individual has not been negligent in giving due attention and
supervision concerning the relevant business to prevent such offence:
1. For a violation of Article 225 (1): A fine not exceeding 300 million won;
2. For a violation of Article 228 or 229: A fine not exceeding 60 million won.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 231 (Confiscation, etc.) (1) Any good created by an infringement prescribed
under Article 225 (1) or any good obtained by such infringement shall be confiscated
or ordered to be delivered to the injured party upon the injured party’s request.
(2) If an injured party accepts a good delivered under paragraph (1), he/she may
claim damages only for the portion exceeding the value of the good.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
Article 232 (Administrative Fines) (1) Any of the following persons shall be punished
by an administrative fine not exceeding 500,000 won:
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1. A person who makes a false statement before KIPT under oath taken under
Article 299 (2) or 367 of the Civil Procedure Act;
2. A person ordered by KIPT to submit or present a document or any other thing in
connection with examination or preservation of evidence, but fails to comply with
the order without just grounds;
3. A person summoned by KIPT to appear as a witness, expert witness, or
interpreter, but fails to comply with the summon, or refuses to take an oath, or
make a statement as a witness, expert, or interpreter without just grounds.
(2) Administrative fines referred to in paragraph (1) shall be imposed and collected
by the Commissioner of KIPO, as prescribed by Presidential Decree.
[This Article Wholly Amended by Act No. 12753, Jun. 11, 2014]
ADDENDA <No. 4207, 13. Jan, 1990>
Article 1 (Enforcement Date)
This Act shall enter into force on September 1, 1990: Provided, That matters
concerning Chapter II of the Patent Cooperation Treaty as prescribed in Articles
201, 205 and 211 shall enter into force on the day on which Chapter II of the Patent
Cooperation Treaty takes effect to the Republic of Korea.
Article 2 (General Transitional Measures)
Except as otherwise provided for in Articles 3 through 9 of this Addenda, this Act
shall also apply to matters having taken place before this Act enters into force:
Provided, That any effect produced pursuant to the previous provisions shall not be
affected.
Article 3 (Transitional Measures concerning Patent Application, etc.)
The examination as to a patent application and the appellate trial as to a refusal
ruling, which are made before this Act enters into force, shall be governed by the
previous provisions.
Article 4 (Transitional Measures concerning Trial, etc. on Patent for which Right is
established)
The trial, appellate trial, review and lawsuit on a patent for which a right is
established on the basis of a patent application filed before this Act enters into force,
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shall be governed by the previous provisions.
Article 5 (Transitional Measures concerning Submission of Priority Evidentiary
Documents under Treaty)
The period for submitting priority evidentiary documents of a patent application
which requests a priority to the Republic of Korea before this Act enters into force,
shall be governed by the previous provisions.
Article 6 (Transitional Measures concerning Rejection of Correction)
Any correction made before this Act enters into force shall be governed by the
previous provisions.
Article 7 (Transitional Measures concerning Duration of Patent Right)
The duration of any patent right established before this Act enters into force and that
established by patent application shall be governed by the previous provisions.
Article 8 (Transitional Measures concerning Expropriation, etc. of Patent Right)
Any disposition or lawsuit on restriction, expropriation, revocation, or embodiment of
a patent right, which is requested before this Act enters into force, shall be governed
by the previous provisions.
Article 9 (Transitional Measures concerning Procedure, Expenses and Compensation for
Losses, etc. of Trial)
The procedure, expenses and compensation for losses, etc. concerning any trial,
appellate trial, review and lawsuit, which are requested before this Act enters into
force, shall be governed by the previous provisions.
ADDENDA <No. 4541, 06. Mar, 1993>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 through 5 Omitted.
ADDENDA <No. 4594, 10. Dec, 1993>
(1) (Enforcement Date) This Act shall enter into force on January 1, 1994.
(2) (Transitional Measures concerning Period for Refund of Patent Fees, etc.)
Patent fees and official fees erroneously paid before this Act enters into force, shall
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be refunded under the former provisions.
(3) (Applicability to Refund of Patent Fees) The amended provisions of Article 84
(1) 2 and 3 concerning the refund of patent fees due to a final decision on nullity of a
patent, shall apply to those on which a decision on nullity becomes conclusive after
this Act enters into force.
ADDENDA <No. 4757, 24. Mar, 1994>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Articles 2 through 5 Omitted.
ADDENDA <No. 4892, 05. Jan, 1995>
Article 1 (Enforcement Date)
This Act shall enter into force on March 1, 1998.
Article 2 (Transitional Measures on Cases Pending)
(1) Any case for which a request for trial has been made or a case pending for
which a request for appellate trial against a ruling of refusal, decision of revocation,
or a decision of rejection for correction before this Act enters into force shall be
deemed to have made a request against a trial with KIPT and to have been pending
therein. <Amended by Act No. 5329, Apr. 10, 1997>
(2) Any case for which a request for trial and decision has been made or a case
pending for which a request for immediate appeal against a decision of dismissal for
request for trial before this Act enters into force shall be deemed to have brought a
litigation against the Patent Court under this Act and to have been pending therein.
Article 3 (Transitional Measures on Cases against which Dissatisfactions may be
Brought)
(1) Any litigation may be brought against a case on which a trial, a decision of
rejection for request for trial, a ruling of refusal, or a decision of dis missal for
correction by an examiner as at the time this Act enters into force, and against which
a dissatisfaction has not brought with the board of patent appeals under the previous
provisions, within 30 days from the date this Act enters into force, a litigation
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referred to in Article 186 (1) may be brought against a trial and decision of the trial
and a decision of rejection for request for trial, and a trial referred to in Article 132-
3 or 132-4 may be requested against a ruling of refusal, or a decision of dismissal
for correction by an examiner: Provided, That where any period for dissatisfaction
has expired under the former provisions as at the time this Act enters into force, the
same shall not apply. <Amended by Act No. 5329, Apr. 10, 1997>
(2) Any dissatisfaction may be brought against a case on which a trial and decision
of a trial, a decision of rejection for request for appellate trial and a decision of
rejection for correction by the appellate trial judge as at the time this Act enters into
force has been served, with the Supreme Court within 30 days from the date this Act
enters into force: Provided, That where any period for dissatisfaction has expired
under the former provisions as at the time this Act enters into force, the same shall
not apply.
(3) Any case against which a dissatisfaction has been brought with the Supreme
Court and which is pending therein before this Act enters into force and any case
against which a dissatisfaction on has been brought pursuant to paragraph (2) shall
be deemed to have been pending or to have been brought against the Supreme Court.
Article 4 (Transitional Measures on Review Cases)
Articles 2 and 3 of Addenda shall apply mutatis mutandis to any review case pending.
Article 5 (Transfer, etc. of Documents)
(1) The Commissioner of the Korean Industrial Property Office shall transfer
documents on a pending case referred to in Article 2 (1) of Addenda (including those
applied mutatis mutandis under Article 4 of Addenda) without delay to the President
of the KIPT.
(2) The Commissioner of the Korean Industrial Property Office shall transfer
documents on a pending case referred to in Article 2 (2) of Addenda (including those
applied mutatis mutandis under Article 4 of Addenda) without delay to the chief
Justice of the Patent Court. In such cases, matters necessary for the transfer etc. of
documents shall be determined by the Supreme Court Regulations.
Article 6 Omitted.
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ADDENDA <No. 5080, 29. Dec, 1995>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 1996.
Article 2 (Transitional Measures concerning Invention of Substance to be Manufactured
by Nuclear Conversion Method)
(1) Any applicant of a patent specifying an invention of a substance to be
manufactured by the nuclear conversion method, in the specification or drawings
appended first to the patent application of those pending in the Korean Industrial
Property Office (excluding cases where a certified copy of the patent ruling is
served), as at the time this Act enters into force, may correct such specification or
drawings within six months after this Act enters into force.
(2) The correction as referred to in paragraph (1) shall be deemed the correction
made prior to the service of a certified copy of the decision on public announcement
on application.
Article 3 (Transitional Measures concerning Duration of Patent Right)
(1) This Act shall not apply to any patent right, the duration of which is terminated
pursuant to the previous provisions before this Act enters into force.
(2) The duration of the patent rights existing, or those the application of which is
pending in the Korean Industrial Property Office, and the duration of which is to be
shortened due to the enforcement of this Act, as at the time this Act enters into
force, shall be governed by the previous provisions.
Article 4 (Special Cases for Recognition of Non-exclusive License for those Preparing
Embodiment Project)
(1) In the event that the patent right to the invention of substance to be
manufactured by the nuclear conversion method is established under the amended
provisions of Article 32, the person who is carrying on or preparing for the
embodiment project of such invention is Korea before January 1, 1995, shall have a
non-exclusive license of the patent right to such invention, in the limit of the object
of such invention or project which is embodied or prepared.
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(2) In the event that the term of a patent right is extended by the enforcement of
this Act, any person who is preparing the embodiment project of the invention in
Korea before January 1, 1995, in anticipation of the termination of such patent right
pursuant to the previous provisions, shall have a non-exclusive license as to such
patent right, to the extent of the object of the invention and business which he/she is
preparing, during the term extended by the enforcement of this Act from the
expiration of the duration as set forth by the previous provisions.
(3) Any person who holds a non-exclusive license under paragraphs (1) and (2),
shall pay a considerable compensation to the patentee or exclusive licensee.
(4) The provisions of Article 118 (2) shall be applicable mutatis mutandis to non-
exclusive licenses as referred to in paragraphs (1) and (2).
Article 5 (Transitional Measures concerning Procedure and Expenses of Trial, and
Compensation for Losses, etc.)
The procedure, expenses, compensation for losses, etc. concerning any trial,
appellate trial, review and lawsuit requested against any act committed before this
Act enters into force, shall be governed by the previous provisions.
ADDENDA <No. 5329, 10. Apr, 1997>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 1997: Provided, That Articles 15 (2), 16
(1) and (2), 46, 132-3, 140-2, 164 (1), 170, 171 (2), 172, 176 (1) and (2), 224-2
of this Act and Articles 2 (1) and 3 (1) of Addenda to the amended Patent Act, Act
No. 4892 shall enter into force on March 1, 1998.
Article 2 (Special Cases concerning Patent Objections)
(1) In applying Article 6, "request an appellate trial against a ruling of refusal under
Article 167" in the same Article shall be construed as "request an appellate trial
against a ruling of refusal or a decision of revocation under Article 167" until
February 28, 1998.
(2) In applying Article 164 (1), "until the decision of another trial or appellate trial
becomes definite" in the same paragraph shall be construed as "until a decision on a
patent objection, of another trial or appellate trial becomes definite" until February
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28, 1998.
(3) In applying Article 170 (1), "Articles 50, 51, 63 and 66 through 75" in the
former part of the same paragraph shall be construed as "Articles 51, 63 and 66" and
the latter part of the same paragraph shall be deemed to be deleted until February
28, 1998, and in applying paragraph (3) of the same Article, "Article 51 (4) through
(6)" in the same paragraph shall be construed as "Article 51 (1) and (5)" until
February 28, 1998.
(4) In applying Article 171 (3) and (4), "ruling of refusal" in the same paragraph
shall be construed as "ruling of refusal or decision of revocation" until February 28,
1998.
(5) In applying Article 172, "procedure for the patent, which was taken for the
examination or trial" in the same Article shall be construed as "procedure for the
patent, which was taken for the examination, patent objection or trial" until February
28, 1998.
(6) In applying Article 176, "shall reverse the refusal ruling or decision on trial" in
the same Article shall be construed as "shall reverse or revoke the refusal ruling,
decision of revocation or decision on trial" until February 28, 1998.
Article 3 (Transitional Measures concerning Modification of Patent Objection System)
(1) Any application for a patent which has been pending in the Korean Industrial
Property Office before this Act enters into force and on which a certified copy of
decision to publish application has been served, and any patent, patent right, trial or
review related to the application for a patent on which a certified copy of decision to
publish application has been served before this Act enters into force shall be
governed by the previous provisions.
(2) Any application for a patent on which a copy of decision to publish application
has been served before this Act enters into force or any application for a patent
which has been filed on the same invention as the invention or device described in
the specification or drawings initially attached to the patent application after the date
of application for a utility model registration shall, notwithstanding the amended
provisions of Article 29 (3), be governed by the previous provisions.
Article 4 (Transitional Measures concerning Penalty Provisions)
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The application of penalty provisions to acts committed before this Act enters into
force shall be governed by the previous provisions.
Article 5 Omitted.
ADDENDA <No. 5576, 23. Sep, 1998>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 1999: Provided, That Articles 193 (1)
and 198-2, the amended provisions concerning the effect of specification, claims,
drawings and abstracts of an international patent application made in the Korean
language of Article 201 (6), the amended provisions concerning the exemption of
submission of translations with respect to an international patent application made in
the Korean language of Article 208 (1) and the amended provisions concerning the
exemption of submission of translations with respect to an international patent
application made in the Korean language of Article 210, shall enter into force on the
date when a convention which the Government of the Republic of Korea concludes
with the International Bureau in connection with the appointment of an international
search authority enters into force, and the amended provisions of Articles 6, 11, 29,
36, 49, 53, 55, 56, 59, 69, 87, 88, 102, 104, 133, 202, 209 and 215 of this Act, and
those of Articles 21 and 22 of the Design Act in Article 5 (2) of this addenda shall
enter into force on July 1, 1999.
[Effective Date of the Agreement: Dec. 1, 1999]
Article 2 (General Transitional Measures)
The previous provisions shall apply to a patent application made under the previous
provisions as at the time this Act enters into force, and the patent registration,
patent right, opposition to a patent, trial, review and litigation related thereto.
Article 3 (Applicability to Disposition of Procedures Related to Filing of Patent
Application by Means of Electronic Documents)
The amended provisions of Articles 28-3 and 217-2 (5) involving patent application
and opposition-related procedures shall apply with respect to a patent application
that is filed from January 1, 1999. <Amended by Act No. 6768, Dec. 11, 2002>
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Article 4 (Applicability to Requirements for Patents)
The amended provisions of Article 29 (3) shall apply in cases where an invention for
which a patent application is made after this Act enters into force (hereafter referred
to as "later-filed invention" in this Article) is the same as a device described in the
specifications or drawings appended to a written application for utility model
registration, which was filed before this Act enters into force and which was laid
open after the filing date of the patent application for a later-filed invention.
Article 5 Omitted.
ADDENDA <No. 6024, 07. Sep, 1999>
Article 1 (Enforcement Date)
This Act shall enter into force on October 1, 2000. (Proviso Omitted.)
Articles 2 through 13 Omitted.
ADDENDA <No. 6411, 03. Feb, 2001>
(1) (Enforcement Date) This Act shall enter into force on July 1, 2001: Provided,
That the amended provisions of Articles 56 (1), 84 (2) and (3), the proviso to
Article 217 (1) and Article 229-2 shall enter into force on the date of its
promulgation.
(2) (Applicability to Requirements for Patents) The amended provisions of Articles
29 (1) 2 and 30 (1) 1 (c) shall apply to a patent application that is filed on and after
this Act enters into force.
(3) (General Transitional Measures) The previous provisions shall apply to an
examination, patent registration, patent right, opposition to a patent, trial, retrial and
litigation related to a patent application which is made under the previous provisions
as at the time this Act enters into force: Provided, That this shall not apply to any of
the following cases: <Amended by Act No. 7871, Mar. 3, 2006>
1. Where an opposition to a patent is made, Articles 136 (9) and 140 (2) as applied
mutatis mutandis under amended Article 77 (3) shall apply;
2. Where a patent application or patent right is deemed to have retroactive effect,
amended Article 81-2 shall apply;
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3. Where a trial to invalidate a patent is requested, amended Article 133-2 (1), (2),
amended Articles 136 (3) through (5), (7) through (11), 139 (3), 140 (1), (2) and
(5), and 136 (1) as applied mutatis mutandis under amended Article 133-2 (3) shall
apply;
4. Where a trial against ruling of refusal of patent application is re quested, the
amended provisions of the proviso to Article 140-2 (1), and (3) shall apply;
5. Where individual claims of a patent application with two or more claims are
abandoned, amended Article 215-2 shall apply.
ADDENDA <No. 6582, 31. Dec, 2001>
(1) (Enforcement Date) This Act shall enter into force six months after the date of
its promulgation.
(2) (Transitional Measures for State or Public Patents) The patents and the rights
eligible to obtain the patent on the in-service inventions of the teachers and staff of
any State or public school, which have owned by the State or local government as at
the time this Act enters into force, shall pass to the fully-responsible systems of the
school at the time of such in-service inventions.
(3) (Transitional Measures for State or Public Utility Model Right, etc.) With regard
to the transfer of the utility model rights for an in-service device and in-service
creation of the teachers and staff of any State or public school, the rights eligible to
obtain a registration of utility model, and the design rights and the rights eligible to
obtain a registration of design, which have owned by the State or local government
as at the time this Act enters into force, the amended provisions of Article 39 and
paragraph (2) of the Addenda applied mutatis mutandis respectively in Article 20 of
the Utility Model Act and in Article 24 of the Design Act shall apply mutatis
mutandis.
ADDENDA <No. 6626, 26. Jan, 2002>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2002.
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Articles 2 through 7 Omitted.
ADDENDA <No. 6768, 11. Dec, 2002>
(1) (Enforcement Date) This Act shall enter into force five months after the date of
its promulgation: Provided, That the amended provisions of Article 201 (1) shall
enter into force three months after the date of its promulgation.
(2) (Applicability to Handling of Opposition to Grant of Patent) The amended
provisions of Article 78-2 shall apply to an opposition to the grant of a patent which
is filed on and after the date this Act enters into force.
(3) (Transitional Measures on Period for Submitting Domestic Documents on
International Patent Application) Notwithstanding the amended provisions of Article
201 (1), the previous provisions shall apply with respect to an international patent
application for which the period for submitting domestic documents has expired as at
the time this Act enters into force.
ADDENDA <No. 7289, 31. Dec, 2004>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Articles 2 through 5 Omitted.
ADDENDA <No. 7427, 31. Mar, 2005>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided, That …
(Omitted.) … Article 7 (excluding paragraphs (2) and (29)) of the Addenda shall
enter into force on January 1, 2008.
Articles 2 through 7 Omitted.
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ADDENDA <No. 7554, 31. May, 2005>
This Act shall enter into force six months after the date of its promulgation:
Provided, That the amended provisions of Article 81-3 shall enter into force on
September 1, 2005.
ADDENDA <No. 7869, 03. Mar, 2006>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation. (Proviso
Omitted.)
Articles 2 through 6 Omitted.
ADDENDA <No. 7871, 03. Mar, 2006>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation: Provided, That the
amended provisions of Articles 3 (3), 6, 7-2 and 11 (1), subparagraph 7 of Article
20, subparagraph 6 of Article 21, and Articles 29 (1), (3) and (4) (amendments
related to the Utility Model Act), 31, 36 (3), 49, 52, 53, 55 (1), (3) and (4)
(amendments related to the Utility Model Act), 56 (1), 58, 58-2, 59 (3), 62, 63-2,
64, 87 (2), 88 (4), 102 (4) (amendments related to the Utility Model Act), 104 (1),
133 (1), 133-2 (4), 135 (1), 154 (8), 193 (1), 202 (3) (amendments related to the
Utility Model Act) and (4), 204 and 205 (amendments related to the relevant date),
208 (3), 209, 213, 215 (amendments related to the Utility Model Act), and 229-2
shall take effect on October 1, 2006; and the amended provisions of Articles 3 (2), 4,
15 (1), 35, 55 (3) (amendments related to the patent objections), 57 (1), 65 (6), 69
through 78, 78-2, 84 (1), 132-3, 136 (1) and (6), 137 (1), 140-2, 148, 164 (1),
165 (3) and (4) (amendments related to the patent objections), 171 (2), 172, 176
(1) and (2), 181 (1), 212, 214 (5), 215, 217 (1) (amendments related to the patent
objections) and (2), 217-2 (1) and (2) (amendments related to the patent
objections), 224-2 (1) (amendments related to the patent objections), 226 (2), and
228, on July 1, 2007.
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Article 2 (Applicability to Patent Requirements, etc.)
The amended provisions of Articles 29 (1) 1, 30 (1) and 36 (4) shall apply from the
first patent application filed after this Act enters into force.
Article 3 (Applicability to Refund of Patent Fees)
The amended provisions of Article 84 (2) and (3) shall apply with respect to a
decision revoking a patent, or a trial ruling invalidating a patent or the registration of
the extended term of a patent which becomes final and conclusive after this Act
enters into force.
Article 4 (Applicability to Revision of Patent Invalidation Trial)
The amended provisions of the proviso to Article 133 (1) (excluding subparagraphs
7 and 8) shall apply to a patent, the establishment of which is registered after this
Act enters into force.
Article 5 (Applicability to Remuneration for Patent Attorney)
The amended provisions of Article 191-2 shall apply to a fee payable to a patent
attorney who performs a lawsuit on behalf of a party after this Act enters into force.
Article 6 (General Transitional Measures)
The former provisions shall apply to the examination of a patent application filed
under the former provisions as at the time this Act enters into force, and the patent
registration, patent, trial, retrial and litigation related thereto: Provided, That the
calculation of a period shall be governed by the amended provisions of subparagraph
4 of Article 14, and a request for the invalidation trial of the patent shall be governed
by the amended provisions of Article 133-2 (4), and a request for a trial to confirm
the scope of the patent right, by the amended provisions of Article 135 (1).
Article 7 (Transitional Measures concerning Abolition of Patent Objection System)
The former provisions shall apply to a patent objection against a patent, the
establishment of which is registered prior to July 1, 2007.
ADDENDA <No. 8171, 03. Jan, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation. (Proviso
Omitted.)
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Articles 2 through 6 Omitted.
ADDENDA <No. 8197, 03. Jan, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2007.
Article 2 (Applicability to Patent Applications, etc.)
The amended provisions of Articles 42, 47 (1) and 55 (3), proviso to Article 59 (2),
subparagraph 4 of Article 62, Article 63-2, proviso to Article 64 (1), the latter parts
of Articles 170 (1) and 174 (2) shall apply from the first patent application filed
after this Act enters into force.
Article 3 (Applicability to Cancelation of Designation of Specialized Institutions)
The amended provisions of Article 58-2 shall apply from the first violation made
after this Act enters into force.
Article 4 (Applicability to Refund of Official Fees for Patent Applications, etc.)
The amended provisions of Article 84 (1) 4 shall apply from the first patent
application filed after this Act enters into force.
Article 5 (Applicability to Correction of Patent in Procedures of Patent Invalidation Trials)
The amended provisions of Articles 133-2 and 137 shall apply from the first request
for a patent invalidation trial made after this Act enters into force.
Article 6 (Applicability to Amendment Made in Specification and Drawings at Trials to
Confirm Scope of Right)
The amended provisions of Article 140 (2) 2 shall apply from the first request for a
trial to confirm the scope of a patent right, filed after this Act enters into force.
Article 7 (General Transitional Measures)
The previous provisions shall apply to a patent application filed under the previous
provisions as well as an examination, trial, retrial, or litigation with regard to such
application as at the time this Act enters into force.
ADDENDA <No. 8357, 11. Apr, 2007>
Article 1 (Enforcement Date)
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This Act shall enter into force on the date of its promulgation: Provided, That
…(Omitted.)… and the amended provisions of Article 6 (4) of the Addenda shall
enter into force on July 1, 2007.
Articles 2 through 7 Omitted.
ADDENDA <No. 8462, 17. May, 2007>
(1) (Enforcement Date) This Act shall enter into force six months after the date of
its promulgation.
(2) (Applicability to Refund of Patent Fees, etc.) The amended provisions of Article
84 (3) shall apply even to patent fees and official fees whose time period of the
request for refund under the previous provisions does not elapse at the time this Act
enters into force.
ADDENDA <No. 8852, 29. Feb, 2008>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 through 7 Omitted.
ADDENDA <No. 9249, 26. Dec, 2008>
This Act shall enter into force on the date of its promulgation.
ADDENDA <No. 9381, 30. Jan, 2009>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2009: Provided, That the amended
provisions of Articles 15 (1), 29 (4), 55, 56, 58 (1), 63 (2), 81-3, 90 (6), 140,
140-2 (2), 202, 204, 205, 207, 208, 214, 216, 226, 226-2, and 227 through 230
shall enter into force on the date of its promulgation.
Article 2 (Applicability to Requirements for Patent of International Patent Application
Filed in Korean Language)
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The amended provisions of Articles 29 (4), 204, 205 and 207 shall apply from the
first international patent application filed in the Korean language on or after January
1, 2009.
Article 3 (Applicability to Amendment to Patent Application)
The amended part related to the deletion of Article 47 (4) of the amended provisions
of Article 47, the main sentence of Article 51 (1) and Article 55 shall apply from the
first amendment made after this Act enters into force. Where an amendment is made
to a patent application filed before this Act enters into force, "period (in cases of
subparagraph 3, that time)" in the proviso to the part other than the subparagraphs of
Article 47 (1) shall be construed as "period"; "when an applicant requests a re-
examination pursuant to Article 67-2" in subparagraph 3 of the same paragraph as
"where a request for a trial against a ruling of refusal to grant a patent is made in
accordance with Article 132-3, 30 days from the date of such request for a trial";
and "Article 47 (1) 2 and 3" in the main sentence of Article 51 (1) as "Article 47 (1)
2. "
Article 4 (Applicability to Request for Re-examination)
The amended part related to a request for re-examination of the amended provisions
of Article 47, the amended part related to a request for re-examination of the
amended provisions of Article 51, and the amended provisions of Article 67-2 shall
apply from the first patent application filed after this Act enters into force.
Article 5 (Applicability to Divided Application)
The amended provisions of Article 52 shall apply to a divisional application based on
the first patent application filed after this Act enters into force.
Article 6 (Applicability to Ex Officio Amendment, etc.)
The amended provisions of Article 66-2 shall apply from the first decision to grant a
patent, made after this Act enters into force.
Article 7 (Applicability to Late Payment and Remaining Payment of Patent Fees)
The amended provisions of Articles 79, 81 and 81-2 shall apply from the first
payment, late payment or remaining payment of patent fees, made after this Act
enters into force.
Article 8 (Applicability to Application for Registration of Extension of Term of Patent
Right)
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The amended provisions of Article 90 (6) shall apply from the first application for
registration of the extension of the term of a patent right, filed after this Act enters
into force.
Article 9 (Applicability to Amendment to Request for Trial, etc.)
The amended provisions of Articles 140 and 140-2 (2) shall apply from the first
request for a trial, made after this Act enters into force.
Article 10 (General Transitional Measures)
The previous provisions (excluding Articles 15 (1) and 216) shall apply to a patent
application filed before this Act enters into force.
Article 11 Omitted.
ADDENDA <No. 9985, 27. Jan, 2010>
This Act shall enter into force six months after the date of its promulgation:
Provided, That the amended provisions of Article 96 shall enter into force on the
date of its promulgation.
ADDENDA <No. 10012, 04. Feb, 2010>
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation.
(Proviso Omitted.)
Articles 2 through 6 Omitted.
ADDENDA <No. 10716, 24. May, 2011>
(1) (Enforcement Date) This Act shall enter into force on July 1, 2011.
(2) (Applicability to Patent Applications) The amended provisions of Articles 42
(3), 63-2 and 133 (1) 1 shall apply from the first patent application filed after this
Act enters into force.
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ADDENDA <No. 11117, 02. Dec, 2011>
Article 1 (Enforcement Date)
This Act shall enter into force on the date when the Free Trade Agreement between
the Republic of Korea and the United States of America and Exchange of Letters
related to the Agreement takes effect: Provided, That the amended provisions of the
proviso to Article 6 of the Addenda of the Patent Act (No. 7871) shall enter into
force on the date of its promulgation.
Article 2 (Applicability to Inventions not Deemed to be Publicly Known, etc.)
The amended provisions of Article 30 shall apply from the first patent application
filed after this Act enters into force.
Article 3 (Applicability to Extension, etc. of Term of Patent Right Following Delayed
Registration)
The amended provisions of Articles 83, 92-2 through 92-5, 93, 132-3, 134, 139,
165, 176 and 187 shall apply from the first patent application filed after this Act
enters into force.
Article 4 (Applicability to Order of Secrecy, etc.)
The amended provisions of Articles 224-3 through 224-5 shall apply from the first
lawsuit against infringement of a patent right or exclusive license filed after this Act
enters into force.
Article 5 (Transitional Measures concerning Repeal of Revocation of Patent Right)
The revocation of a patent right due to grounds for revocation of a patent right under
the former Article 116 before this Act enters into force, shall be governed by the
previous provisions.
ADDENDA <No. 11654, 22. Mar, 2013>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2013: Provided, That the amended
provisions of Articles 44, 52 (4), 53 (6), 58-2 (2), 59 (3), 92 (1) shall enter into
force on the date of its promulgation.
Article 2 (Applicability to Invalidation of Procedure, etc.)
The amended provisions of the main sentence of Article 16 (2) and Articles 47 (4),
67-3, 81-3 (1), and 84 (1) 4 shall apply from the first patent applications filed on
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or after the date this Act enters into force.
Article 3 (Applicability to Divisional Applications)
The amended provisions of Article 52 (4) shall apply from the first divisional
applications filed on or after the date such amended provisions enter into force.
Article 4 (Applicability to Converted Applications)
The amended provisions of Article 53 (6) shall apply from the first converted
applications filed on or after the date such amended provisions enter into force.
Article 5 (Applicability to Cancellation, etc. of Designation of Specialized Institutions)
The amended provisions of Article 58-2 (2) shall apply from the first prior notice
issued for the suspension of business operations on or after the date such amended
provisions enter into force.
Article 6 (Transitional Measure concerning Requirements for Patent Registration, etc.)
Notwithstanding the amended provisions of Article 29 (1) 2 and subparagraph 2 of
Article 129, the patent applicat
ADDENDA <No. 11690, 23. Mar, 2013>
Article 1 (Enforcement Date)
(1) This Act shall enter into force on the date of its promulgation.
(2) Omitted.
Articles 2 through 7 Omitted.
ADDENDA <No. 11848, 28. May, 2013>
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2014. (Proviso Omitted.)
Articles 2 through 20 Omitted.
ADDENDA <No. 11962, 30. Jul, 2013>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation. (Proviso
Omitted.)
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Articles 2 through 10 Omitted.
ADDENDA <No. 12313, 21. Jan, 2014>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation.
Article 2 (Transitional Measures concerning the Incompetent)
The wards of limited guardians and wards of adult guardians under the amended
provisions under Article 3 (1) shall be deemed to include persons who have been
declared and is currently incompetent or quasi-incompetent under Article 2 of the
Addenda to the amended Civil Act (Act No. 10429).
ADDENDA <No. 12753, 11. Jun, 2014>
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 2015: Provided, That the amended
provisions of Article 81-3 (3) shall enter into force on the date of its promulgation.
Article 2 (Applicability to Time of Arrival of Notice or Document Served by Electronic
Document)
The amended provisions of Article 28-5 (3) shall apply to notices and documents
delivered or served under the amended provisions of Article 28-5 (1) after this Act
enters into force.
Article 3 (Applicability to Reinstatement of Patents Extinguished due to Failure to Pay
Patent Fees)
The amended provisions of Article 81-3 (3) shall apply from the first request for
reinstatement of a patent filed after this Act enters into force.
Article 4 (Applicability to Trials for Correction)
The amended proviso to Article 136 (1) and the amended proviso to Article 136 (6)
shall apply from the first trial for correction for which a petition is filed after this Act
enters into force.
Article 5 (Applicability to Trials on Invalidation of Correction)
The amended provisions of Article 137 (1) and (4) shall apply to the first trial on
invalidation of correction for which a petition is filed after this Act enters into force.
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Article 6 (Applicability to Amendment of Petitioner for Trial)
The amended provisions of Articles 140 (2) 1 and 140-2 (2) 1 shall apply to the
first trial for which a petition is filed after this Act enters into force.
Article 7 (Applicability to Provision of Information during Trials on Appeal against
Decision Rejecting Patent Application)
The amended provisions of the former part of Article 170 (1) (limited to the part to
which the amended provisions of Article 63-2 shall apply mutatis mutandis) shall
also apply to patent applications on which trial on an appeal against a ruling to reject
is pending as at the time this Act enters into force, notwithstanding Article 8 of this
Addenda.
Article 8 (General Transitional Measure)
The former provisions shall apply to patent applications filed before this Act enters
into force, and examinations and trials pending on a patent application as at the time
this Act enters into force.
Article 9 (Transitional Measure concerning Requirements for Patent Registration)
Notwithstanding the amended provisions of Article 29 (5) through (7), Article 55
(6), and Article 202 (2) and (3), the f
Article 10 (Transitional Measure Concerning Deferment of Submission of Scope of
Claims)
The former provisions shall apply to a patent application filed before this Act enters
into force, with the specification in which the scope of claims is omitted under the
former provisions of Article 42 (5).
Article 11 Omitted.
Article 12 (Relationship to other Acts and Subordinate Statutes)
A citation of any provisions of the former Patent Act by any other Act or subordinate
statute as at the time this Act enters into force shall be deemed a citation of the
corresponding provisions of this Act in lieu of the former provisions, if such
corresponding provisions exist herein.
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