Legislative Implementation of Flexibilities - Republic of Korea
| Title: | Articles 2-5 of the Utility Model Act Promulgated on 31/12/1961 by Act No. 952 ( Last amended by Act No. 9371 of 30/01/2009) |
| Field of IP: | Patents |
| Type of flexibility: | Utility models |
| Summary table: |  |
Provisions of Law
Article 2 Definitions
The definitions of terms used in this Act are as follows:
(i) "device" means the creation of technical ideas using the rules of nature;
(ii) "registered utility model" means a device for which a utility model has been granted; and
(iii) "working" means acts of manufacturing, using, assigning, leasing, importing, or offering for assignment or lease (including displaying for assignment or lease) an article to which a device has been applied.
Article 3 Mutatis Mutandis Application of the Patent Act
Articles 3 to 7, 7bis, 8 to 26, 28, 28bis to 28quinquies of the Patent Act apply mutatis mutandis to utility models.
Article 4 Requirements for Utility Model Registration
(1) A utility model may be granted for devices that are industrially applicable and relate to the shape or structure of an article or a combination of articles, unless they fall under either of the following subparagraphs:
(i) devices publicly known or worked in the Republic of Korea before the filing of the utility model application; or
(ii) devices described in a publication distributed in the Republic of Korea or in a foreign country before the filing of the utility model application or made available to the public through electronic telecommunication lines under Presidential Decree.
(2) Notwithstanding paragraph(1), where a device could easily have been made befote the filing of the utility model application by a person with ordinary skill in the art to which the device pertains, on the basis of a device referred to in either subparagraph of paragraph (1), a utility model registration may not be granted to that device.
(3) Notwithstanding paragraph (1), where a device for which a utility model application is filed is identical to a device or an invention described in the description or drawing(s) originally attached to another utility model application or a patent application, and where the other utility model application was filed before the utility model application and published after registration for public inspection after the filing date of the utility model application, or where a patent application was filed before the utility model application and laid open or published after grant for public inspection after the filing date of the utility model application, a utility model may not be granted for the device of the utility model application. This provision does not apply, however, where the inventor of the utility model application and the inventor of the other utility model or patent application are the same person or where the applicant of the utility model application and the applicant of the other utility model or patent application are the same person at the time of filing.
(4) In applying paragraph (3), where the other utility model or patent application falls under one of the following subparagraphs, "laid open" of paragraph 3 reads "laid open or was the subject of an international publication under Article 21 of the Patent Cooperation Treaty", and "a device or invention described in the description or drawing(s) originally attached" reads, in case the application was filed in Korean, "a device or invention described in the description, claim(s) or drawing(s) of the international application as of the international filing date" and, in case the application was filed in a foreign language, "a device or an invention described in the description, claim(s) or drawing(s) described both in the international application as of the international filing date and its translated version":
(i) the other utility model application is an international application (including an international application that is deemed a utility model application according to Article 40(4)) that is deemed a utility model application according to Article 34(1); and
(ii) the patent application is an international application that is deemed a patent application according to Article 199(1) of the Patent Act (including an International application that is deemed a patent application according to Article 214(4) of the Patent Act).
Article 5 Devices Deemed to be Not Known etc.
(1) Where a device that belongs to a person with the right to obtain a utility model registration falls under any of the following subparagraphs, the device is not considered to fall under either subparagraph of Article 4(1) where Article 4(1) or (2) applies if the utility model application is filed within six months of the applicable date:
(i) where a person with the right to obtain a utility model registration causes the device to fall under either subparagraph of Article 4(1); however, this provision does not apply if an application is laid open or the registration is published in the Republic of Korea or in a foreign country in accordance with a treaty or applicable law.
(ii) where the device falls under either subparagraph of Article 4(1) against the intention of the person with the right to obtain a utility model registration;
(2) A person seeking to take advantage of paragraph (1)(i) of this Article shall file an application for utility model registration, and, within thirty days of the filing date of the application, specify in the application the purport of the intention to take advantage of paragraph (1)(i) of this Article and submit documents proving the relevant facts to the Commissioner of the Korean Intellectual Property Office.