Legislative Implementation of Flexibilities - Republic of Korea
| Title: | Articles 42 (2) (iii), (3), (5) and (7), 62 (iv) and 133 (1) (i) of the Patent Act No. 950 on 28/11/1949, as last amended by Act No. 9381 of 30/01/2009 |
| Field of IP: | Patents |
| Type of flexibility: | Disclosure related flexibilities |
| Summary table: |  |
Provisions of Law
Article 42
Patent Application
(2) A written patent application under paragraph (1) shall be accompanied by an abstract, drawing(s) (if necessary) and a description stating the following:
(iii) a detailed description of the invention; and
(3) The detailed description of the invention referred to in paragraph (2)(iii) shall describe the invention clearly and in detail as prescribed by Ordinance of the Ministry of
Knowledge Economy so that a person with ordinary skill in the art to which the invention pertains may easily work the invention.
( (5) Notwithstanding paragraph (2), a patent applicant may, at the time the application is filed, attach the description, from which the scope of claims under paragraph (2)(iv) are omitted, to the written patent application. In such cases, the applicant shall amend the description to include the scope of claims by either of the following deadlines:
(i) the date marking the elapse of one year and six months from the date that falls under any of the subparagraphs of Article 64(1); or
(ii) the date marking the elapse of three months from the date on which notification is given under Article 60(3) for a request to examine a patent application before the deadline stipulated in subparagraph (i) of this paragraph (however, where the notification is given more than one year and three months after the date that falls under any subparagraph of Article 64(1), the date marking the elapse of one year and six months from that date).
(7) Where a patent applicant has filed a patent application but fails to subsequently amend the description to include the scope of claims by the relevant deadline stipulated in subparagraph (5)(i) or (ii), the application is deemed to have been withdrawn on the date immediately following the relevant deadline.
Article 62
Decision to Reject a Patent Application
An examiner shall make a decision to reject a patent application for any of the following
grounds (referred to as "the grounds for rejection", hereinafter):
(iv) where the application does not comply with the requirements of Articles 42(3), (4),
(8) or 45;
Article 133
Invalidation Trial of a Patent
(1) Where a patent falls under any of the following subparagraphs, an interested party or an
examiner may request a trial to invalidate the patent. In such a case, if the patent
contains two or more claims in the scope of claims, a request for an invalidation trial
may be made for each claim. However, any person may request an invalidation trial on
the grounds that the patent falls under any of the following subparagraphs (except
subparagraph (ii)), provided the request is made after the registration date of
establishment of the patent right and not more than three months after the publication
date of the registration of the patent right:
(i) where the patent has been granted in violation of Articles 25, 29, 32, 36(1) to (3),
42(3), (4);