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Legislative Implementation of Flexibilities - Republic of Korea

Title:Article 41 of the Patent Act No. 950 of 31/12/1961 as last amended by Act No. 11690 of 2013
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Article 41

Inventions Necessary for National Defense etc.

(1) If an invention is necessary for national defense, the Government may order an inventor, an applicant or a representative not to file a patent application for the invention in the foreign patent offices concerned or to keep the invention confidential. However, if such persons obtain permission from the Government, they may file a patent application in foreign countries.

(2) If an invention is considered necessary for national defense, the Government may refuse to grant a patent and, for reasons of national defense such as in time of war, uprising or other similar emergency, may expropriate the right to obtain a patent.

(3) The Government shall pay reasonable compensation for losses arising from its prohibition of filing a patent application in a foreign country or from the maintenance of confidence under paragraph (1).

(4) The Government shall pay reasonable compensation if a patent is not granted or the right to obtain a patent is expropriated under paragraph (2).

(5) When a person violates an order prohibiting the filing of an application for an invention in a foreign country or an order to maintain confidence under paragraph (1), the person's right to obtain a patent for that invention is deemed to be abandoned.

(6) When a person violates an order to maintain confidence under paragraph (1), the person's right to request payment of compensation for the loss arising from maintaining confidence is deemed to be abandoned.

(7) Matters related to such procedures as prohibiting the filing of a patent application in foreign countries and maintaining confidence under paragraph (1) or for expropriation or payment of compensation under paragraphs (2) to (4) are prescribed by Presidential Decree.

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