법령, 판례 등 모든 법령정보를 한 번에 검색
PATENT ACT
[Enforcement Date 23. Mar, 2013.] [Act No.11690, 23. Mar, 2013., Amendment by Other Act]
특허청 (특허심사제도곾( �42-481-5397
법제처 국가법령정보센터
www.law.go.kr
2019.09.16
「PATENT ACT」
PATENT ACT
[Enforcement Date 23. Mar, 2013.] [Act No.11690, 23. Mar, 2013., Amendment by Other Act]
특허청 (특허심사제도과) 042-481-5397
특허청 (특허심사기획과) 042-481-5395
CHAPTER I GENERAL PROVISIONS
Article 1 (Purpose)
The purpose of this Act is to encourage, protect and utilize inventions, thereby
promoting the development of technology, and to contribute to the development of
industry.
Article 2 (Definitions)
The terms used in this Act shall be defined as follows:<Amended by Act No. 5080, Dec.
29, 1995>
1. The term "invention" means the highly advanced creation of technical ideas
utilizing 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 acts:
(a) In cases of an invention of a product, acts of manufacturing, using, assigning,
leasing, importing, or offering for assigning or leasing (including displaying for
the purpose of assignment or lease; hereinafter the same shall apply) the
product;
(b) In cases of an invention of a process, acts of using the process;
(c) In cases of an invention of a process of manufacturing a product, acts of using,
assigning, leasing, importing, or offering for assigning or leasing the product
manufactured by the process, in addition to the acts mentioned in item (b).
Article 3 (Capacity of Minors, etc.) (1) Minors, quasi-incompetents and incompetents
shall not initiate the procedure for filing an application, requesting an examination, or
any other patent-related procedure (hereinafter referred to as "patent-related
procedure") unless represented by their legal representatives: Provided, That this
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shall not apply where a minor or a quasi-incompetent may perform a legal act
independently.
(2) The legal representative as referred to in paragraph (1) may, without the
consent of the family council, act in any trial or retrial procedures initiated by
another party. <Amended by Act No. 4892, Jan. 5, 1995; Act No. 5329, Apr. 10,
1997; Act No. 7871, Mar. 3, 2006>
(3) Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 4 (Associations, etc. which are not Juristic Persons)
A representative or an administrator, who has been so designated by an association
or a foundation which is not a juristic person, may request the examination of a
patent application or appear as a plaintiff or defendant in a trial or a retrial in its
association or foundation name.<Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar.
3, 2006>
Article 5 (Patent Administrators for Overseas Residents) (1) A person who has neither
an address nor a place of business in the Republic of Korea (hereinafter referred to
as "overseas resident") may not, except in cases where an overseas resident (or a
representative thereof if a juristic person) is sojourning in the Republic of Korea,
initiate any patent-related procedure, nor appeal any decision taken by an
administrative agency in accordance with this Act or any order thereunder, unless
he/she is represented by an agent with respect to his/her patent, who has an address
or a place of business in the Republic of Korea (hereinafter referred to as "patent
administrator"). <Amended by Act No. 6411, Feb. 3, 2001>
(2) A patent administrator shall, within the scope of powers conferred on him/her,
represent the principal in all procedures relating to a patent and in any appeal against
a decision taken by an administrative agency in accordance with this Act or any
order thereunder. <Amended by Act No. 6411, Feb. 3, 2001>
(3) and (4) Deleted. <by Act No. 6411, Feb. 3, 2001>
Article 6 (Scope of Authority of Representative)
An agent who is instructed to initiate a patent-related procedure before the Korean
Intellectual Property Office by a person who has an address or a place of business in
the Republic of Korea shall not, unless expressly so empowered, convert, abandon or
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withdraw an application for a patent, withdraw an application to register an extension
of the term of a patent right, abandon a patent right, withdraw a petition, withdraw a
request, make or withdraw a priority claim under Article 55 (1), request a trial under
Article 132-3, or appoint a sub-agent.<Amended by Act No. 4594, Dec. 10, 1993; Act No.
4892, Jan. 5, 1995; Act No. 5576, Sep. 23, 1998; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3,
2006>
Article 7 (Proof of Authority of Representative)
An agent (including a patent administrator; hereinafter the same shall apply) of a
person who is initiating a patent-related procedure before the Korean Intellectual
Property Office shall present written proof of his/her authority of representative.
<Amended by Act No. 6411, Feb. 3, 2001>
Article 7-2 (Ratification of Acts of Persons Lacking Capacity, etc.)
Patent-related procedures, initiated by a person who lacks capacity, the power of
legal representation or the authorization necessary to initiate any such procedures,
shall have effect retroactively to the time when such procedures are performed if the
procedures are ratified by the principal when he/she has gained capacity to proceed.
[This Article Newly Inserted by Act No. 7871, Mar. 3, 2006]
Article 8 (Non-extinction of Authority of Representative)
No authority of a representative delegated by a person initiating a patent-related
procedure shall be extinguished upon the decease or loss of legal capacity of the
principal, the extinction of a juristic person of the principal due to a merger, the
termination of the duty of trust of the principal, the decease or loss of legal capacity
of the legal representative, or the modification or extinction of his/her authority of
representative.
Article 9 (Independence of Representation)
Where two or more representatives of a person initiating a patent-related procedure
have been designated, each of them shall independently represent the principal
before the Korean Intellectual Property Office or the Intellectual Property Tribunal.
<Amended by Act No. 4892, Jan. 5, 1995>
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Article 10 (Replacement of Representative, etc.) (1) When the Commissioner of the
Korean Intellectual Property Office or the presiding administrative patent judge
considers that a person initiating a patent-related procedure is not qualified to
conduct such procedure without difficulties or make oral statements, etc., he/she
may order the appointment of an representative to conduct the procedure.
<Amended by Act No. 6411, Feb. 3, 2001>
(2) When the Commissioner of the Korean Intellectual Property Office or the
presiding administrative patent judge considers that the representative of a person
initiating a patent-related procedure is not qualified to conduct such procedure
without difficulties or make oral statements, etc., he/she may order the replacement
of the representative. <Amended by Act No. 6411, Feb. 3, 2001>
(3) The Commissioner of the Korean Intellectual Property Office or the presiding
administrative patent judge may order the appointment of a patent attorney to
conduct the procedure, in cases referred to in paragraph (1) or (2).
(4) The Commissioner of the Korean Intellectual Property Office or the presiding
administrative patent judge may invalidate any action taken before the Korean
Intellectual Property Office or the Intellectual Property Tribunal by the person
initiating the patent-related procedure referred to in paragraph (1) or by the
representative referred to in paragraph (2) prior to the appointment or replacement
of the representative under paragraph (1) or (2), respectively, after the issuance of
an order under paragraph (1) or (2). <Amended by Act No. 4892, Jan. 5, 1995>
Article 11 (Representation of Two or More Persons) (1) Where two or more persons
jointly initiate a patent-related procedure, each of them shall represent the joint
initiators except for actions falling under any of the following subparagraphs:
Provided, That this shall not apply where those persons have appointed a common
representative and have notified the Korean Intellectual Property Office or the
Intellectual Property Tribunal thereof: <Amended by Act No. 4892, Jan. 5, 1995; Act
No. 5576, Sep. 23, 1998; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006>
1. Conversion, abandonment or withdrawal of a patent application or withdrawal of
an application to register an extension of term of a patent right;
2. Withdrawal of a petition, claim or withdrawal of a priority claim under Article 55
(1);
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3. Withdrawal of a request;
4. Request for a trial under Article 132-3.
(2) Where the common representative has been appointed and notified under the
proviso to paragraph (1), written proof indicating that the representative has been
appointed shall be presented.
Article 12 (Mutatis Mutandis Application of the Civil Procedure Act)
Except as specially provided for in this Act, the provisions of Section 4 of Chapter II
of Part I of the Civil Procedure Act shall apply mutatis mutandis to representatives
under this Act.<Amended by Act No. 7871, Mar. 3, 2006>
Article 13 (Venue of Overseas Residents)
If an overseas resident has appointed a patent administrator with respect to his/her
patent right or other rights relating to a patent, the domicile or place of business of
the patent administrator shall be deemed that of the overseas resident. Where there
is no such patent administrator, the location of the Korean Intellectual Property
Office shall be deemed the seat of property under Article 11 of the Civil Procedure
Act.<Amended by Act No. 6626, Jan. 26, 2002; Act No. 7871, Mar. 3, 2006>
Article 14 (Calculation of Periods)
The periods provided for in this Act or any orders thereunder shall be calculated as
follows:<Amended by Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar.
3, 2006>
1. The first day of the period shall not be counted: Provided, That this shall not
apply to cases where the period starts at midnight;
2. When the period is expressed in months or years, it shall be counted according to
the calendar;
3. When the start of the period does not coincide with the beginning of a month or
year, the period shall expire on the day preceding the date in the last month or
year of the period corresponding to the date on which the period started: Provided,
That where a month or year is used and there is no corresponding day in the last
month, the period shall expire on the last day of that month;
4. If the last day of the period for executing a patent-related procedure falls on an
official holiday (including the Workers' Day designated by the Designation of
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Workers' Day Act and Saturdays), the said period shall expire on the working day
following such holiday.
Article 15 (Extension, etc. of Periods) (1) The Commissioner of the Korean
Intellectual Property Office or the President of the Intellectual Property Tribunal
may, upon request or ex officio, extend the period of request for trial referred to in
Article 132-3 only once up to 30 days: Provided, That he/she may additionally
extend the number and period of such request for the benefit of a person residing in
an area with poor transportation. <Amended by Act No. 9381, Jan. 30, 2009>
(2) When the Commissioner of the Korean Intellectual Property Office, the
President of the Intellectual Property Tribunal, a presiding administrative patent
judge or an examiner has designated a period for a patent-related procedure under
this Act, he/she may extend or reduce such period upon request or may extend such
period ex officio. In such cases, the Commissioner of the Korean Intellectual
Property Office, etc. shall decide to extend or reduce such period so that any
interest of an interested person for the relevant procedure is unduly violated.
<Amended by Act No. 8197, Jan. 3, 2007>
(3) When a presiding administrative patent judge or an examiner has designated a
date for initiating a patent-related procedure under this Act, he/she may change the
date upon request or ex officio.
Article 16 (Invalidation of Procedure) (1) When a person who has been ordered to
make an amendment in accordance with Article 46 fails to do so within the
designated period, the Commissioner of the Korean Intellectual Property Office or
the President of the Intellectual Property Tribunal may invalidate the patent-related
procedure: where a person who has been ordered to make an amendment for not
paying the fees for a request for examination under Article 82 (2) fails to pay the
said fees within the designated period, the Commissioner of the Korean Intellectual
Property Office or the President of the Intellectual Property Tribunal may invalidate
the amendment to the specification attached to the patent application.
(2) When a patent-related procedure has been invalidated under paragraph (1), if it
is deemed that the failure to make an amendment within the designated period has
been made due to a cause not imputable to the person who has been ordered to do
so, the Commissioner of the Korean Intellectual Property Office or the President of
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the Intellectual Property Tribunal may revoke the disposition of invalidation, at the
request of the person ordered to make the amendment, within two months from the
date on which the relevant cause ceases to exist: Provided, That the foregoing shall
not apply where one year has elapsed since the designated period expired.
<Amended by Act No. 11654, Mar. 22, 2013>
(3) When the Commissioner of the Korean Intellectual Property Office or the
President of the Intellectual Property Tribunal takes a disposition of invalidation
under the main sentence of and proviso to paragraph (1) or revokes a disposition of
invalidation under the main sentence of paragraph (2), he/she shall send a
notification of such measure to a person who has been ordered to make an
amendment. <Newly Inserted by Act No. 8197, Jan. 3, 2007>
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
Article 17 (Subsequent Completion of Procedure)
If a person who initiated a patent-related procedure has failed to comply with the
period for requesting a trial under Article 132-3 or the period for demanding a
retrial under Article 180 (1) due to a cause not imputable to the person, he/she may
subsequently complete the procedure that he/she failed to conduct within 14 days
after the said reason ceases to exist: Provided, That this shall not apply where one
year has elapsed after the said period expires.<Amended by Act No. 4892, Jan. 5, 1995; Act
No. 5576, Sep. 23, 1998; Act No. 6411, Feb. 3, 2001>
Article 18 (Succession of Procedural Effects)
The effects of a procedure taken in relation to a patent or other rights relating to a
patent shall extend to the successor in title.
Article 19 (Continuation of Procedure)
Where a patent right or other rights relating to a patent is transferred while a
patent-related procedure is pending in the Korean Intellectual Property Office or the
Intellectual Property Tribunal, the Commissioner of the Korean Intellectual Property
Office or the presiding administrative patent judge may require the successor in title
to continue the patent-related procedure.<Amended by Act No. 4892, Jan. 5, 1995; Act No.
6411, Feb. 3, 2001>
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Article 20 (Interruption of Procedure)
If any patent-related procedure pending in the Korean Intellectual Property Office or
the Intellectual Property Tribunal falls under any of the following subparagraphs, it
shall be interrupted: Provided, That this shall not apply where there is a
representative authorized to conduct the procedure:<Amended by Act No. 4892, Jan. 5,
1995; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006>
1. When the party involved is deceased;
2. When the juristic person involved ceases to exist by merger;
3. When the party involved loses the ability to conduct the procedure;
4. When the legal representative of the party involved is deceased or loses his/her
authority;
5. When the commission of a trustee given by the trust of the party involved
terminates;
6. When the representative as provided for in the proviso to Article 11 (1) is
deceased or loses his/her qualification;
7. When the trustee in bankruptcy, etc. who acted on behalf of the party involved in
his/her own name under a certain qualification loses his/her qualification or is
deceased.
Article 21 (Resumption of Interrupted Procedure)
When a procedure pending in the Korean Intellectual Property Office or the
Intellectual Property Tribunal has been interrupted pursuant to Article 20, any
person who falls under any of the following subparagraphs shall resume the
procedure:<Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411, Feb. 3, 2001; Act No. 7871,
Mar. 3, 2006>
1. In cases of subparagraph 1 of Article 20, the deceased person's successor,
administrator of inheritance, or any other person authorized to pursue the
procedure under other Acts: Provided, That the deceased person's successor may
not resume the procedure until his/her right to succession is subject to
renunciation;
2. In cases of subparagraph 2 of Article 20, the juristic person established by a
merger or survived a merger;
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3. In cases of subparagraphs 3 and 4 of Article 20, the party whose ability to take
necessary procedure has been restored or any person who becomes the legal
representative of the party;
4. In cases of subparagraph 5 of Article 20, a new trustee;
5. In cases of subparagraph 6 of Article 20, a new representative or each party;
6. In cases of subparagraph 7 of Article 20, a new trustee in bankruptcy, etc. holding
the same qualification.
Article 22 (Request for Resumption) (1) A request to resume a procedure interrupted
under Article 20 may be made by an opposing party.
(2) When a request to resume a procedure interrupted under Article 20 is made, the
Commissioner of the Korean Intellectual Property Office or the presiding
administrative patent judge shall notify the opposite party thereof.
(3) If the Commissioner of the Korean Intellectual Property Office or the
administrative patent judge deems that no grounds exist to accept a request to
resume the procedure interrupted under Article 20, after examining the request ex
officio, he/she shall dismiss the request by decision. <Amended by Act No. 4892,
Jan. 5, 1995>
(4) The Commissioner of the Korean Intellectual Property Office or the
administrative patent judge shall decide, upon request to resume, whether to permit
resumption of the interrupted procedure after a certified copy of the decision or trial
decision was sent. <Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411, Feb. 3,
2001>
(5) If a person referred to in Article 21 fails to resume the interrupted procedure,
the Commissioner of the Korean Intellectual Property Office or the administrative
patent judge shall, ex officio, designate a period and order to resume such procedure
within the period. <Amended by Act No. 4892, Jan. 5, 1995>
(6) If the procedure has not been resumed within the designated period provided for
in paragraph (5), it is considered that the procedure has been resumed on the day
following the expiration of such designated period.
(7) If the Commissioner of the Korean Intellectual Property Office or the presiding
administrative patent judge deems that the procedure has been resumed in
accordance with paragraph (6), he/she shall notify the parties involved thereof.
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Article 23 (Suspension of Procedure) (1) If the Commissioner of the Korean
Intellectual Property Office or the administrative patent judge is unable to carry out
his/her duties due to a natural disaster or other extenuating circumstances, the
procedure pending in the Korean Intellectual Property Office or the Intellectual
Property Tribunal shall be suspended until such impediments cease to exist.
<Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411, Feb. 3, 2001>
(2) If a party involved is unable to pursue a procedure pending in the Korean
Intellectual Property Office or the Intellectual Property Tribunal on account of
impediments of indefinite duration, the Commissioner of the Korean Intellectual
Property Office or the administrative patent judge may order its suspension by
decision. <Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411, Feb. 3, 2001>
(3) The Commissioner of the Korean Intellectual Property Office or the
administrative patent judge may cancel the decision issued under paragraph (2).
<Amended by Act No. 4892, Jan. 5, 1995>
(4) If a procedure is suspended under paragraphs (1) and (2), or a decision is
canceled under paragraph (3), the Commissioner of the Korean Intellectual Property
Office or the presiding administrative patent judge shall notify the parties involved
thereof. <Amended by Act No. 6411, Feb. 3, 2001>
Article 24 (Effects of Interruption or Suspension)
The interruption or suspension of a patent-related procedure pending in the Korean
Intellectual Property Office or the Intellectual Property Tribunal shall suspend the
running of a term and the entire term shall start to run again from the time of the
notification of the continuation or resumption or pursuit of the procedure.<Amended by
Act No. 4594, Dec. 10, 1993>
Article 25 (Capacity of Foreigners)
Foreigners who have neither an address nor a place of business in the Republic of
Korea shall not enjoy patent rights or other rights relating to a patent, except as
provided for in any of the following subparagraphs:
1. Where their countries allow nationals of the Republic of Korea to en joy patent
rights or other rights relating to a patent under the same conditions as their own
nationals;
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2. Where their countries allow nationals of the Republic of Korea to enjoy patent
rights or other rights relating to a patent under the same conditions as their own
nationals in cases where the Republic of Korea allows their countries' nationals to
enjoy patent rights or other rights relating to a patent;
3. Where they may enjoy patent rights or other rights relating to a patent according
to a treaty or equivalents to a treaty (hereinafter referred to as "treaty").
Article 26 Deleted.<by Act No. 11117, Dec. 2, 2011>
Article 27 Deleted.<by Act No. 6411, Feb. 3, 2001>
Article 28 (Effective Date of Submission of Documents) (1) Written applications,
written requests or other documents (including articles; hereafter the same shall
apply in this Article) submitted to the Korean Intellectual Property Office or the
Intellectual Property Tribunal under this Act or any order thereunder, shall be
effective as of the date on which they are delivered to the Korean Intellectual
Property Office or the Intellectual Property Tribunal. <Amended by Act No. 4892,
Jan. 5, 1995>
(2) Where written applications, written requests or other documents under
paragraph (1) are submitted by mail to the Korean Intellectual Property Office or the
Intellectual Property Tribunal, they are deemed to be delivered to the Korean
Intellectual Property Office or the Intellectual Property Tribunal on the date as
stamped by the mail service if the stamped date is clear; however, if such stamped
date is unclear they are deemed to be delivered on the date when the mail was
submitted to a post office, which is proven by a receipt therefor: Provided, That this
shall not apply where written applications for requesting registration of a patent right
and other rights related thereto, and documents concerning an international
application under Article 2 (vii) of the Patent Cooperation Treaty (hereinafter
referred to as "international application") are submitted by mail. <Amended by Act
No. 4892, Jan. 5, 1995; Act No. 5576, Sep. 23, 1998; Act No. 7871, Mar. 3, 2006>
(3) Deleted. <by Act No. 5576, Sep. 23, 1998>
(4) Matters concerning the submission of documents with regard to the delay of
mail, loss of mail, or interruption of the mail service, other than those provided for in
paragraphs (1) and (2), shall be prescribed by Ordinance of the Ministry of Trade,
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Industry and Energy. <Amended by Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec.
29, 1995; Act No. 5576, Sep. 23, 1998; Act No. 6411, Feb. 3, 2001; Act No. 8852,
Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
Article 28-2 (Entry of Identification Number) (1) A person prescribed by Ordinance of
the Ministry of Trade, Industry and Energy, among persons who initiate patent-
related procedures (excluding any person to whom an identification number has
already been granted under paragraph (2) or (3)), shall apply for identification
number to the Korean Intellectual Property Office or the Intellectual Property
Tribunal. <Amended by Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29, 2008;
Act No. 11690, Mar. 23, 2013>
(2) Where any person files an application under paragraph (1), the Commissioner of
the Korean Intellectual Property Office or the President of the Intellectual Property
Tribunal shall grant an identification number and notify him/her thereof.
(3) Where a person who initiates a patent-related procedure under paragraph (1)
fails to apply for identification number, the Commissioner of the Korean Intellectual
Property Office or the President of the Intellectual Property Tribunal shall, ex
officio, grant an identification number and notify him/her thereof.
(4) If a person to whom an identification number has been granted under paragraph
(2) or (3) initiates a patent-related procedure, he/she shall enter his/her
identification number in any document prescribed by Ordinance of the Ministry of
Trade, Industry and Energy. In such cases, notwithstanding the provisions of this Act
or any order thereunder, a domicile (a place of business if a juristic person) may be
omitted in the said document. <Amended by Act No. 6411, Feb. 3, 2001; Act No.
8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
(5) Paragraphs (1) through (4) shall apply mutatis mutandis to a representative of a
person who initiates a patent-related procedure.
(6) An application for identification number, the grant and notification thereof, and
other necessary matters therefor shall be prescribed by Ordinance of the Ministry of
Trade, Industry and Energy. <Amended by Act No. 8852, Feb. 29, 2008; Act No.
11690, Mar. 23, 2013>
[This Article Newly Inserted by Act No. 5576, Sep. 23, 1998]
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Article 28-3 (Procedure for Filing Patent Applications by Electronic Documents) (1) A
person who initiates a patent-related procedure may, pursuant to the means
prescribed by Ordinance of the Ministry of Trade, Industry and Energy, convert a
written application for a patent or other documents to be presented to the
Commissioner of the Korean Intellectual Property Office or the President of the
Intellectual Property Tribunal under this Act into electronic documents, and may
present them by means of any information and communication networks or any
electronic recording medium, such as a floppy disk or an optical disk. <Amended by
Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006; Act No. 8852, Feb. 29,
2008; Act No. 11690, Mar. 23, 2013>
(2) Electronic documents presented under paragraph (1) shall have the same effect
as other documents presented under this Act.
(3) When a presenter thereof confirms a receipt number through an information and
communication network, such electronic documents presented through an information
and communication network under paragraph (1) shall be deemed to have been
received as the details written in a file for receipt saved on a computer system
operated by the Korean Intellectual Property Office or the Intellectual Property
Tribunal. <Amended by Act No. 6411, Feb. 3, 2001>
(4) The kinds of documents that may be presented by means of electronic
documents under paragraph (1) and the means of such presentation or other
necessary matters therefor shall be prescribed by Ordinance of the Ministry of
Trade, Industry and Energy. <Amended by Act No. 8852, Feb. 29, 2008; Act No.
11690, Mar. 23, 2013>
[This Article Newly Inserted by Act No. 5576, Sep. 23, 1998]
Article 28-4 (Report on Use of Electronic Documents and Electronic Signature) (1) A
person who intends to initiate a patent-related procedure by electronic documents
shall first report the use thereof to the Commissioner of the Korean Intellectual
Property Office or the President of the Intellectual Property Tribunal, and shall affix
his/her electronic signature so that the presenter may be discerned.
(2) Electronic documents presented under Article 28-3 shall be deemed to have
been filed by a person who affixes his/her electronic signature under paragraph (1).
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(3) Matters necessary for the procedures of report on use of electronic documents
and the methods of electronic signature under paragraph (1) shall be prescribed by
Ordinance of the Ministry of Trade, Industry and Energy. <Amended by Act No.
8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
[This Article Newly Inserted by Act No. 5576, Sep. 23, 1998]
Article 28-5 (Notification, etc. through Information and Communication Networks) (1)
If the Commissioner of the Korean Intellectual Property Office, the President of the
Intellectual Property Tribunal, a presiding administrative patent judge, an
administrative patent judge, a presiding examiner, or an examiner intends to give
notification and make transmission (hereinafter referred to as a "notification, etc.")
of any pertinent documents to a person who reports the use of electronic documents
under Article 28-4 (1), he/she may do so through information and communication
networks. <Amended by Act No. 6411, Feb. 3, 2001>
(2) The notification, etc. of any pertinent documents given through information and
communication networks under paragraph (1) shall have the same effect as that
given in writing. <Amended by Act No. 6411, Feb. 3, 2001>
(3) The notification, etc. of any pertinent documents under paragraph (1) shall, if it
is written in a file of a computer system operated by a person who receives the said
notification, etc., be deemed to reach as the details written in a file of a computer
system for transmission operated by the Korean Intellectual Property Office or the
Intellectual Property Tribunal. <Amended by Act No. 6411, Feb. 3, 2001>
(4) Matters necessary for the classification and the means of notification, etc. given
through information and communication networks under paragraph (1) shall be
prescribed by Ordinance of the Ministry of Trade, Industry and Energy. <Amended
by Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar.
23, 2013>
[This Article Newly Inserted by Act No. 5576, Sep. 23, 1998]
CHAPTER II REQUIREMENTS FOR PATENT REGISTRATION AND PATENT
APPLICATION
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Article 29 (Requirements for Patent Registration) (1) An invention having industrial
applicability may be patentable unless it falls under either of the following
subparagraphs: <Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3,
2006; Act No. 11654, Mar. 22, 2013>
1. Any invention publicly known or worked in the Republic of Korea or in a foreign
country prior to the filing of the patent application;
2. Any invention that has been carried in a publication distributed in the Republic of
Korea or in a foreign country prior to the filing of the patent application or any
invention that has been made utilizable by the public through telecommunication
lines.
(2) Notwithstanding paragraph (1), where an invention could easily be made prior to
the filing of the patent application by a person having ordinary skill in the art to
which the invention pertains, on the basis of an invention referred to in any
subparagraph of paragraph (1), no patent shall be granted for such invention.
<Amended by Act No. 6411, Feb. 3, 2001>
(3) Notwithstanding paragraph (1), no patent shall be granted where the invention
for which a patent application is filed is identical to an invention or device described
in the specification or drawings initially attached to another patent application or a
utility model registration application which is made prior to the date of filing the said
patent application and laid open or published after grant for public inspection after
the filing of the said patent application: Provided, That this shall not apply where an
inventor of the relevant patent application and an inventor of another patent or utility
model application are the same person or where an applicant of the patent application
and an applicant of another patent or utility model application are the same person as
at the time of filing. <Amended by Act No. 4594, Dec. 10, 1993; Act No. 5329, Apr.
10, 1997; Act No. 5576, Sep. 23, 1998; Act No. 6411, Feb. 3, 2001; Act No. 7871,
Mar. 3, 2006>
(4) In applying paragraph (3), where another patent application or a utility model
registration application falls under any of the following subparagraphs, "laid open" in
paragraph (3) shall be construed as "laid open for public inspection or internationally
published pursuant to Article 21 of the Patent Cooperation Treaty", and "invention or
device described in the specification or drawings initially attached to another patent
application or a utility model registration application" shall be construed as "invention
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or device described in the specification, claims or drawings submitted on the
international filing date" if it is applied for in the Korean language, and shall be
construed as an "invention or device described in the specification, claims or
drawings submitted on the international filing date and the translated version of the
said documents" if it is applied for in a foreign language: <Amended by Act No.
9381, Jan. 30, 2009>
1. Where another patent application is an international application which is deemed a
patent application pursuant to Article 199 (1) (including an international application
which becomes a patent application pursuant to Article 214 (4));
2. Where a utility model registration application is an international application which
is deemed a utility model registration application pursuant to Article 34 (1) of the
Utility Model Act (including an international application which becomes a utility
model registration application pursuant to Article 40 (4) of the same Act).
Article 30 (Inventions not Deemed to be Publicly Known, etc.) (1) If a patentable
invention falls under any of the following subparagraphs, in applying Article 29 (1) or
(2) to the invention claimed in the patent application, on condition that the patent
application therefor is filed within 12 months from the applicable date, the patent
shall not be deemed to fall under any subparagraph of Article 29 (1): <Amended by
Act No. 4594, Dec. 10, 1993; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3,
2006; Act No. 11117, Dec. 2, 2011>
1. When a person having the right to obtain a patent has caused his/her invention to
fall under any subparagraph of Article 29 (1): Provided, That this shall exclude
cases where the relevant application is laid open, or the registration of a patent for
the relevant invention is published in the Republic of Korea or a foreign country
pursuant to any treaty or Act;
2. When the invention falls under any subparagraph of Article 29 (1) against the
intention of the person having the right to obtain a patent;
3. Deleted.<by Act No. 7871, Mar. 3, 2006>
(2) Any person intending to have paragraph (1) 1 applied shall file a patent
application to that effect and then submit a document proving the relevant facts to
the Commissioner of the Korean Intellectual Property Office within 30 days from the
filing date of the patent application. <Amended by Act No. 7871, Mar. 3, 2006>
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Article 31 Deleted.<by Act No. 7871, Mar. 3, 2006>
Article 32 (Unpatentable Inventions)
Inventions that are feared to have risks to contravene public order or morality or to
injure public health shall not be patentable, notwithstanding Article 29 (1) and (2).
[This Article Wholly Amended by Act No. 5080, Dec. 29, 1995]
Article 33 (Persons Entitled to Obtain Patent) (1) Any person who makes a new
invention or his/her successor shall be entitled to obtain a patent in accordance with
this Act: Provided, That employees of the Korean Intellectual Property Office and
the Intellectual Property Tribunal shall not obtain patents while in office, excluding
cases of inheritance or bequest. <Amended by Act No. 4892, Jan. 5, 1995; Act No.
6411, Feb. 3, 2001>
(2) If two or more persons jointly make an invention, the right to obtain a patent
shall be jointly owned.
Article 34 (Patent Application Filed by Unentitled Person and Protection of Lawful
Holder of Right)
If a patent cannot be granted because an application was filed by a person who is not
the inventor or a successor to the right to obtain a patent (hereinafter referred to as
"unentitled person") under the main sentence of Article 33 (1) falls under
subparagraph 2 of Article 62, a subsequent application filed by a lawful holder of the
right shall be deemed to have been filed on the date of filing of the initial application
filed by the un entitled person: Provided, That this shall not apply where the
subsequent application is filed by the lawful holder of the right more than 30 days
after the date on which the application filed by the unentitled person was rejected.
<Amended by Act No. 6411, Feb. 3, 2001>
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
Article 35 (Patent Granted to Unentitled Person and Protection of Lawful Holder of
Right)
If a trial decision invalidating a patent has become final and conclusive due to the lack
of entitlement under the main sentence of Article 33 (1) as prescribed in Article 133
(1) 2, a subsequent application filed by the lawful holder of the right shall be deemed
to have been filed at the time the invalidated patent application was filed: Provided,
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That this shall not apply where the subsequent application is filed more than two
years after the publication date of the first application or more than 30 days after the
decision of invalidation becomes final and conclusive.
[This Article Wholly Amended by Act No. 7871, Mar. 3, 2006]
Article 36 (First-to-File Rule) (1) Where two or more applications relating to the
same invention are filed on different dates, only the applicant of the application
having the earlier filing date may obtain a patent for the invention.
(2) Where two or more applications relating to the same invention are filed on the
same date, only the person agreed upon by all the applicants after consultation may
obtain a patent for the invention. If no agreement is reached or no consultation is
possible, none of the applicants shall obtain a patent for the invention.
(3) Where a patent application has the same subject matter as a utility model
registration application and the applications are filed on different dates, paragraph
(1) shall apply mutatis mutandis; whereas if they are filed on the same date,
paragraph (2) shall apply mutatis mutandis. <Amended by Act No. 5576, Sep. 23,
1998; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006>
(4) Where a patent application or utility model registration application is invalidated,
withdrawn or abandoned, or a decision or trial decision to reject the application
becomes final and conclusive, such application shall, in applying paragraphs (1)
through (3), be deemed never to have been filed: Provided, That this shall not apply
where a decision or trial decision to reject the patent application or utility model
registration application becomes final and conclusive pursuant to the latter part of
paragraph (2) (including cases where it applies mutatis mutandis under paragraph
(3)). <Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006>
(5) A patent application or utility model registration application filed by a person
who is not the inventor, creator, or successor in title to the right to obtain a patent or
utility model registration shall, in applying paragraphs (1) through (3), be deemed
never to have been filed.
(6) In cases of paragraph (2), the Commissioner of the Korean Intellectual Property
Office shall order the applicants to report the results of the consultation within a
designated period. If such report is not submitted within the designated period, the
applicants shall be deemed not to have reached agreement under paragraph (2).
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Article 37 (Transfer, etc. of Right to Obtain Patent) (1) The right to obtain a patent
may be transferred.
(2) The right to obtain a patent shall not be the subject of a pledge.
(3) In cases of joint ownership of the right to obtain a patent, a joint owner shall not
assign his/her share without the consent of all the joint owners.
Article 38 (Succession to Right to Obtain Patent) (1) The succession to the right to
obtain a patent before the filing of the patent application shall not be effective against
third persons unless the successor in title files the patent application.
(2) Where two or more applications for a patent are filed on the same date with
respect to the right to obtain a patent for the same invention derived by succession
from the same person, the succession to the right to obtain the patent by any person,
other than the one agreed upon by all the patent applicants, shall not be effective.
(3) Paragraph (2) shall also apply where a patent application and a utility model
registration application are filed on the same date, with respect to the right to obtain
a patent and utility model registration for the same invention and device which has
been derived by succession from the same person.
(4) Succession to the right to obtain a patent after the filing of the patent application
shall not be effective unless a notice of change of applicant is filed, except in cases
of inheritance or other general succession. <Amended by Act No. 6411, Feb. 3,
2001>
(5) Upon inheritance or other general succession with respect to the right to obtain
a patent, the successor in title shall notify the Commissioner of the Korean
Intellectual Property Office of such purport without delay.
(6) Where two or more notifications of change of applicant are made on the same
date, with respect to the right to obtain a patent for the same invention that has been
derived by succession from the same person, a notification made by any person,
other than the one agreed upon after consultations among all the persons who made
notifications, shall not be effective. <Amended by Act No. 6411, Feb. 3, 2001>
(7) Article 36 (6) shall apply mutatis mutandis to cases under paragraphs (2), (3)
and (6). <Amended by Act No. 4594, Dec. 10, 1993>
Article 39 Deleted.<by Act No. 7869, Mar. 3, 2006>
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Article 40 Deleted.<by Act No. 7869, Mar. 3, 2006>
Article 41 (Inventions, etc. Necessary for National Defense) (1) If necessary for the
national defense, the Government may order an inventor, an applicant, or a
representative not to file a patent application for an invention in foreign patent
offices concerned or to keep such invention confidential: Provided, That if such
persons obtain permission from the Government, they may file an application
therefor in foreign patent offices.
(2) If an invention filed with the Korean Intellectual Property Office 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 therefor. <Amended by Act
No. 5080, Dec. 29, 1995>
(3) The Government shall pay reasonable compensation for losses arising from the
prohibition of a patent application from being filed in a foreign patent office or from
the maintenance of confidentiality under paragraph (1). <Amended by Act No. 6411,
Feb. 3, 2001>
(4) The Government shall pay reasonable compensation in the event that a patent is
not granted, or the right to obtain a patent is expropriated under paragraph (2).
(5) If there has been a violation of an order to prohibit an application from being
filed for an invention in a foreign patent office or of an order to maintain
confidentiality under paragraph (1), the right to obtain a patent therefor shall be
deemed abandoned.
(6) If there has been a violation of an order to maintain confidentiality under
paragraph (1), the right to request the payment of compensation for the loss arising
from maintaining confidentiality shall be deemed abandoned.
(7) Matters relating to the procedure for prohibiting an application from being filed
in a foreign country, proceedings for maintaining confidentiality under paragraph (1),
or for expropriation or payment of compensation under paragraphs (2) through (4)
and other necessary matters shall be prescribed by Presidential Decree.
Article 42 (Patent Applications) (1) Any person who intends to obtain a patent shall
file a patent application stating the following with the Commissioner of the Korean
Intellectual Property Office: <Amended by Act No. 6411, Feb. 3, 2001>
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1. The name and domicile of an applicant (if a juristic person, its title and place of
business);
2. The name and domicile, or place of business of a representative of the applicant,
if any (the title, place of business and the name of the designated patent attorney if
the representative is a patent corporation);
3. Deleted;<by Act No. 6411, Feb. 3, 2001>
4. The title of the invention;
5. The name and the domicile of an inventor;
6. Deleted.<by Act No. 6411, Feb. 3, 2001>
(2) A patent application under paragraph (1) shall be accompanied by a specification
stating the following and necessary drawings and abstracts:
1. The title of an invention;
2. Brief description of the drawings;
3. Detailed description of the invention;
4. The scope of claims.
(3) The detailed descriptions of an invention referred to in paragraph (2) 3 shall
satisfy the following requirements: <Amended by Act No. 10716, May 24, 2011; Act
No. 11690, Mar. 23, 2013>
1. Descriptions of the invention shall be provided in accordance with the methods
prescribed by Ordinance of the Ministry of Trade, Industry and Energy in a clear
and detailed manner to ensure that any person with ordinary knowledge in the
technology sector to which the relevant invention belongs can easily make the
invention;
2. Technology used for the relevant innovation shall be stated.
(4) The scope of claims under paragraph (2) 4 shall describe the matter for which
protection is sought in one or more claims (hereinafter referred to as "claims") and
the claims shall fall under any of the following subparagraphs: <Amended by Act No.
8197, Jan. 3, 2007>
1. The claims shall be supported by detailed description of the invention;
2. The claims shall define the invention clearly and in detail;
3. Deleted.<by Act No. 8197, Jan. 3, 2007>
(5) When filing a patent application, any patent applicant may attach the
specification not stating the scope of claims under paragraph (2) 4 to the patent
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application, notwithstanding paragraph (2). In such cases, the specification shall be
amended so as to state the claims within the period classified under the following
subparagraphs: <Newly Inserted by Act No. 8197, Jan. 3, 2007>
1. Until one and half years since any date specified in the subparagraphs of Article
64 (1);
2. Until three months since the date of receiving the notification of the purport of a
request of examination of the patent application under the provisions of Article 60
(3) within the period set forth in subparagraph 1 (until one and a half years since
any date specified in the subparagraphs of Article 64 (1), if such notification was
received after one year and three months from any date specified in the
subparagraphs of the same paragraph).
(6) The scope of claims under paragraph (2) 4 shall state such matters deemed
necessary to specify an invention as structures, methods, functions and materials or
combination thereof to clarify what to be protected. <Newly Inserted by Act No.
8197, Jan. 3, 2007>
(7) Where a patent applicant fails to amend the specification until any period
specified in the subparagraphs of paragraph (5) has passed after filing the
application, the application concerned shall be deemed withdrawn on the day
following the date the period expires. <Newly Inserted by Act No. 8197, Jan. 3,
2007>
(8) Matters necessary for the methods of entering the scope of claims under
paragraph (2) 4 shall be prescribed by Presidential Decree.
(9) Methods for the description of an abstract under paragraph (2) shall be
prescribed by Ordinance of the Ministry of Trade, Industry and Energy. <Amended
by Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3,
2001; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
Article 43 (Abstract)
An abstract under Article 42 (2) shall not be interpreted to define the scope of
invention for which protection is sought, but rather shall serve as a technical
information document.
Article 44 (Joint Applications)
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Where the right to obtain a patent is jointly owned, all the owners shall jointly file a
patent application.<Amended by Act No. 11654, Mar. 22, 2013>
Article 45 (Scope of One Patent Application) (1) A patent application shall relate to
one invention only: Provided, That a group of inventions so linked as to form a single
general inventive concept may be the subject of one patent application.
(2) The requirements for one patent application under paragraph (1) shall be
prescribed by Presidential Decree.
Article 46 (Amendment to Procedure)
The Commissioner of the Korean Intellectual Property Office or the President of the
Intellectual Property Tribunal shall order to amend a patent-related procedure,
designating a period if the procedure falls under any of the following subparagraphs:
<Amended by Act No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act No. 6768, Dec. 11,
2002>
1. Where the procedure is in violation of Article 3 (1) or 6;
2. Where the procedure is in violation of the formalities specified in this Act or any
order thereunder;
3. Where fees required in accordance with Article 82 have not been paid.
Article 47 (Amendment to Patent Application) (1) A patent applicant may amend the
specification or drawings attached to a patent application within any period
prescribed in the subparagraphs of Article 42 (5) or before delivering a certified
copy of a decision to grant a patent pursuant to Article 66: Provided, That after
receiving a notice of grounds for rejection pursuant to Article 63 (1) (hereinafter
referred to as "notice of grounds for rejection"), a patent applicant may amend the
specification or drawings during the period prescribed in the following subparagraphs
only (in cases under subparagraph 3, referring to that time): <Amended by Act No.
8197, Jan. 3, 2007; Act No. 9381, Jan. 30, 2009>
1. Where an applicant receives a notice of grounds for rejection (excluding a notice
of grounds for rejection with regard to a ground for rejection which has arisen
according to the amendment following the notice of grounds for rejection) for the
first time or receives a notice of grounds for rejection, other than that referred to
in subparagraph 2, the period for presentation of a written opinion following the
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relevant notice of grounds for rejection;
2. Where an applicant receives a notice of grounds for rejection with regard to a
ground for rejection which has arisen according to the amendment following the
notice of grounds for rejection, the period for presentation of a written opinion
following the relevant notice of grounds for rejection;
3. When an applicant requests a re-examination pursuant to Article 67-2.
(2) An amendment to the specification or drawings under paragraph (1) shall be
made within the scope of the features disclosed in the specification or drawings
initially attached to the patent application.
(3) An amendment to the scope of claims, from among amendments pursuant to
paragraph (1) 2 and 3, may be made only where it falls under any of the following
subparagraphs: <Amended by Act No. 9381, Jan. 30, 2009>
1. Where the scope of claims for a patent is reduced by limiting, deleting, adding
claims;
2. Where wrong description is corrected;
3. Where ambiguous description is made clear;
4. With regard to an amendment beyond the scope referred to in paragraph (2),
where returning to the scope of claims made prior to the amendment, or amending
the scope of claims pursuant to subparagraphs 1 through 3 in the course of
returning to the said scope of claims.
(4) Where a patent application is amended within any period specified in paragraph
(1) 1 or 2, all the amendments made before the last amendment in the course of each
amendment shall be deemed withdrawn. <Newly Inserted by Act No. 11654, Mar.
22, 2013>
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
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 (Dismissal of Amendment) (1) Where an examiner deems that an
amendment pursuant to Article 47 (1) 2 and 3 has violated paragraphs (2) and (3) of
the same Article or that a new ground for rejection has arisen following the
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amendment (excluding an amendment deleting claims pursuant to paragraph (3) 1
and 4 of the same Article), he/she shall dismiss such amendment by decision:
Provided, That where a request for re-examination is made pursuant to Article 67-
2, this shall not apply to an amendment made prior to such request. <Amended by
Act No. 9381, Jan. 30, 2009>
(2) The decision to reject an amendment under paragraph (1) shall be made in
writing and shall state the reasons therefor.
(3) No appeal shall be made against a ruling of dismissal under paragraph (1):
Provided, That this shall not apply to a dispute concerning the ruling of dismissal
(where a request for re-examination is filed pursuant to Article 67-2, a ruling of
dismissal made before such request is filed shall be excluded) in a trial on the
decision of refusal of a patent pursuant to Article 132-3. <Amended by Act No.
9381, Jan. 30, 2009>
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
Article 52 (Divisional Patent Application) (1) An applicant who has filed one patent
application comprising of two or more inventions may divide such application into two
or more applications within the limit of such matters as stated in the specification or
drawings which are initially attached to the patent application, in accordance with a
period falling under any of the following subparagraphs: <Amended by Act No. 5329,
Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006; Act No.
9381, Jan. 30, 2009>
1. A period in which an amendment can be made pursuant to Article 47 (1);
2. A period in which a request for trial can be made pursuant to Article 132-3 after
the receipt of a certified copy of the ruling of dismissal of a patent.
(2) A patent application divided under paragraph (1) (hereinafter referred to as
"divisional application") shall be deemed to have been filed at the time of filing of the
initial patent application: Provided, That in applying the provisions of the following
subparagraphs to the said divisional application, such application shall be deemed to
be made at the time when the divisional application was filed: <Amended by Act No.
4594, Dec. 10, 1993; Act No. 5576, Sep. 23, 1998; Act No. 7871, Mar. 3, 2006>
1. In cases where Article 29 (3) of this Act or Article 4 (3) of the Utility Model Act
is applicable when the divisional application falls under another patent application
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under Article 29 (3) of this Act or a patent application under Article 4 (3) of the
Utility Model Act;
2. In cases where Article 30 (2) is applicable;
3. In cases where Article 54 (3) is applicable;
4. In cases where Article 55 (2) is applicable.
(3) A person who files a divisional application under paragraph (1) shall indicate the
purpose thereof and the patent application that forms the basis of the division in the
divisional application. <Newly Inserted by Act No. 6411, Feb. 3, 2001>
(4) In cases of any divisional application, any person who claims a priority right
under Article 54 may submit the documents specified in paragraph (4) of the said
Article to the Commissioner of the Korean Intellectual Property Office within three
months from the date of filing the divisional application, even after the lapse of the
period specified in paragraph (5) of the said Article. <Newly Inserted by Act No.
4594, Dec. 10, 1993; Act No. 6768, Dec. 11, 2002; Act No. 11654, Mar. 22, 2013>
Article 53 (Converted Application) (1) A person who has filed a utility model
registration application may convert the utility model registration application into a
patent application within the limit of such matters as stated in the specification or
drawings which are initially attached to the utility model registration application:
Provided, That this shall not apply where 30 days have passed since he/she has
received a certified copy of the first decision to reject the utility model registration
application.
(2) When there is a patent application made by converting from a utility model
registration application pursuant to paragraph (1) (hereinafter referred to as
"converted application"), the converted application shall be deemed to have been filed
on the filing date of the utility model registration application: Provided, That this
shall not apply where the converted application falls under any of the following
subparagraphs:
1. In cases where Article 29 (3) of this Act or Article 4 (3) of the Utility Model Act
is applicable when the patent application falls under another patent application
under Article 29 (3) of this Act or a patent application under Article 4 (3) of the
Utility Model Act;
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2. In cases where Article 30 (2) is applicable;
3. In cases where Article 54 (3) is applicable;
4. In cases where Article 55 (2) is applicable.
(3) A person who makes a patent application converted under paragraph (1) shall
indicate in a converted application its purport and the utility model registration
application which forms the basis of the converted application.
(4) When there is a converted application, the utility model registration application
shall be deemed to be withdrawn.
(5) When the period provided for in Article 132-3 is extended pursuant to Article
15 (1) of this Act which applies mutatis mutandis under Article 3 of the Utility Model
Act, the period of 30 days referred to in the proviso to paragraph (1) shall be
deemed to be extended accordingly.
(6) In cases of any converted application, any person who claims a priority right
under Article 54 may submit the documents specified in paragraph (4) of the said
Article to the Commissioner of the Korean Intellectual Property Office within three
months from the date of filing the converted application, even after the lapse of the
period specified in paragraph (5) of the said Article. <Amended by Act No. 11654,
Mar. 22, 2013>
[This Article Wholly Amended by Act No. 7871, Mar. 3, 2006]
Article 54 (Priority Claim Under Treaty) (1) If a national of a country party which
recognizes under a treaty a priority right to a patent application filed by a national of
the Republic of Korea claims the priority right to a patent application in the Republic
of Korea on the basis of the initial application for the same invention in his/her
country or other country parties, the filing date of the initial application in the foreign
country shall be deemed to be the filing date in the Republic of Korea for the
purposes of Articles 29 and 36. This shall also apply where a national of the Republic
of Korea has filed a patent application in a country which recognizes under a treaty a
priority right to patent applications filed by nationals of the Republic of Korea, and
claims the priority right to a patent application in the Republic of Korea on the basis
of the initial application for the same invention in said country.
(2) No person intending to claim a priority right in accordance with paragraph (1)
may claim the priority right unless the person files a patent application claiming the
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priority right within one year from the filing date of the initial application.
(3) A person intending to claim a priority right in accordance with paragraph (1)
shall specify its purport, the name of the country in which the initial application was
filed and the filing date of such application in the patent application which he/she files
in the Republic of Korea.
(4) A person who has claimed a priority right under paragraph (3) shall submit to
the Commissioner of the Korean Intellectual Property Office the documents
prescribed in subparagraph 1 or the written statement prescribed in subparagraph 2:
Provided, That the written statement referred to in subparagraph 2 shall be
submitted only where the country is prescribed by Ordinance of the Ministry of
Trade, Industry and Energy: <Amended by Act No. 6411, Feb. 3, 2001; Act No.
8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
1. A written statement with the filing date of the application and a copy of the
specification and drawings certified by the government of the country where the
initial application was filed;
2. A written statement with the file number of the application in the country where
the initial application was filed.
(5) Documents or written statements under paragraph (4) shall be submitted within
one year and four months from the earliest among the dates prescribed in the
following subparagraphs: <Newly Inserted by Act No. 6411, Feb. 3, 2001>
1. The date on which the application was first filed in a country that is a party to a
treaty;
2. The filing date of the application which is to be the basis for the priority claim
where a patent application contains other priority claims in accordance with Article
55 (1);
3. The filing date of the application that is to be the basis for the priority claim
where a patent application contains other priority claims in accordance with
paragraph (3).
(6) Where a person who has claimed a priority right under paragraph (3) fails to
submit the document prescribed in paragraph (4) within the period set under
paragraph (5), the priority claim shall lose its effect. <Amended by Act No. 6768,
Dec. 11, 2002>
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(7) A person who is eligible to claim the priority right under paragraph (1) and is in
compliance with the requirements of paragraph (2) may amend or supplement the
said priority claims within one year and four months from the earliest date
prescribed under paragraph (5). <Newly Inserted by Act No. 6411, Feb. 3, 2001>
Article 55 (Priority Claim Based on Patent Application, etc.) (1) Any person who
intends to obtain a patent may claim the priority right for an invention for which a
patent application has been made on the basis of an invention described in the
specification or drawings initially attached to an application filed in advance
(hereinafter referred to as "earlier application") as a patent application or a utility
model registration application, for which he/she has the right to obtain a patent or
utility model registration: Provided, That this shall not apply to any of the following
subparagraphs: <Amended by Act No. 11654, Mar. 22, 2013>
1. Where the patent application concerned is filed one year after the filing date of an
earlier application;
2. Where an earlier application is a divisional application as provided in Article 52
(2) (including such cases as applied mutatis mutandis under Article 11 of the
Utility Model Act) or a converted application as provided in Article 53 (2) hereof
or Article 10 (2) of the Utility Model Act;
3. Where an earlier application has been abandoned, invalidated, or withdrawn at the
time of filing the patent application;
4. Where a decision or trial decision to grant or refuse a patent or a utility model
registration for an earlier application has become final and conclusive at the time of
filing the patent application.
(2) Any person intending to claim the a priority right under paragraph (1) shall,
when applying for a patent, indicate the purport and an earlier application on the
patent application.
(3) For the purposes of Article 29 (1) and (2), the main sentence of Article 29 (3),
Articles 30 (1), 36 (1) through (3), 96 (1) 3, 98, 103, 105 (1) and (2), 129 and 136
(4) of this Act (including such cases as applied mutatis mutandis under Article 133-
2 (4)), Articles 7 (3) and (4) and 25 of the Utility Model Act, Articles 45 and 52 (3)
of the Design Protection Act to an invention which is the same as the invention
described in the specification or drawings initially attached to an earlier application
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which is the basis of the relevant priority claim, from among inventions for which a
patent application has been filed with a priority claim pursuant to paragraph (1), such
patent application shall be deemed to have been filed when the earlier application
was filed.
(4) The main sentence of Article 29 (3) of this Act or the main sentence of Article
4 (3) of the Utility Model Act shall apply to an invention which is the same as the
invention described in the specification or drawings initially attached to an earlier
application which is the basis of the relevant priority claim, from among inventions
for which a patent application has been filed with a priority claim pursuant to
paragraph (1) by deeming that an earlier application which is the basis of the
relevant priority claim has been laid open when the patent application has been laid
open or the patent has been registered and publicly announced.
(5) If an earlier application falls under any of the following subparagraphs,
paragraphs (3) and (4) shall not apply to an invention described in the specification
or drawings when a patent application which is the basis of the priority claim is filed
with respect to the earlier application from among inventions described in the
specification or drawings initially attached to the earlier application:
1. Where an earlier application is the one with a priority claim pursuant to paragraph
(1);
2. Where an earlier application is the one with a priority claim pursuant to Article
4-D (1) of the Paris Treaty for Protection of Industrial Property Rights.
(6) In applying paragraph (4), where the earlier application falls under any of the
following subparagraphs, "invention or device described in the specification, claims
or drawings submitted on the international filing date and the translated version of
the said documents" in Article 29 (4) shall be construed as "invention or device
described in the specification, claims or drawings submitted on the international filing
date":
1. Where an earlier application is an international application (including an
international application which becomes a patent application pursuant to Article 214
(4)) which is regarded as a patent application pursuant to Article 199 (1);
2. Where an earlier application is an international application (including an
international application which becomes a utility model registration application
pursuant to Article 40 (4) of the Utility Model Act) which is regarded as a utility
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model registration application pursuant to Article 34 (1) of the same Act.
(7) Any person who has claimed a priority right, satisfying the requirements
pursuant to paragraph (1), may amend or supplement the priority claim within one
year and four months from the filing date of an earlier application (the earliest filing
date in cases where there exist no less than two earlier applications).
[This Article Wholly Amended by Act No. 9381, Jan. 30, 2009]
[Enforcement Date: Jul. 1, 2013]
Article 56 (Withdrawal, etc. of Earlier Application) (1) An earlier application which is
the basis of a priority claim pursuant to Article 55 (1) shall be deemed to have been
withdrawn at the time of expiration of one year and three months from the filing date
of the earlier application: Provided, That this shall not apply where that earlier
application falls under any of the following subparagraphs: <Amended by Act No.
5576, Sep. 23, 1998; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006; Act
No. 9381, Jan. 30, 2009>
1. Where the earlier application has been abandoned, invalidated or withdrawn;
2. Where a decision or a trial decision to grant or refuse a patent or a utility model
registration has become final and conclusive;
3. Where priority claims based on the earlier application concerned have been
withdrawn;
4. Deleted.<by Act No. 7871, Mar. 3, 2006>
(2) No applicant of a patent application containing a priority claim under Article 55
(1) may withdraw the priority claim after the expiration of one year and three
months from the filing date of an earlier application.
(3) Where a patent application containing a priority claim under Article 55 (1) is
withdrawn within one year and three months from the filing date of an earlier
application, the priority claim shall be deemed withdrawn simultaneously therewith.
CHAPTER III EXAMINATION
Article 57 (Examination by Examiners) (1) The Commissioner of the Korean
Intellectual Property Office shall direct examiners to examine patent applications.
<Amended by Act No. 7871, Mar. 3, 2006>
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(2) The qualifications for examiners shall be prescribed by Presidential Decree.
Article 58 (Search, etc. for Prior Art) (1) If it is deemed necessary for the examination
of a patent application (including an international investigation and international
preliminary examination for an international application), the Commissioner of the
Korean Intellectual Property Office may designate a specialized institution and assign
duties of searching prior art, conducting a patent classification under the
International Patent Classification and others determined by Presidential Decree to
such institution. <Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3,
2006; Act No. 9381, Jan. 30, 2009>
(2) If it is deemed necessary for the process of examination, the Commissioner of
the Korean Intellectual Property Office may request the cooperation of, or seek
advice from, a Government agency, an organization specialized in the technology
concerned or an expert having profound knowledge and experience in patent matters.
In such cases, he/she may pay them allowances or expenses for such cooperation or
advice within the budgetary limits of the Korean Intellectual Property Office.
(3) Necessary matters concerning the designation of a specialized institution, such
as standards for designation, and the implementation procedures for searching prior
art or conducting a patent classification, etc. under paragraph (1), shall be prescribed
by Presidential Decree. <Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871,
Mar. 3, 2006>
Article 58-2 (Cancellation of Designation of Specialized Institutions) (1) Where a
specialized institution referred to in Article 58 (1) falls under subparagraph 1, the
Commissioner of the Korean Intellectual Property Office shall cancel such
designation, and where a specialized institution falls under subparagraph 2, he/she
may cancel such designation or order suspension of its business operations by fixing
a period of up to six months:
1. Where the organization has obtained designation by false or illegal means;
2. Where the organization does not conform to the standard for designation under
Article 58 (3).
(2) When the Commissioner of the Korean Intellectual Property Office intends to
cancel the designation of a specialized institution or order a specialized institution to
suspend its business operations pursuant to paragraph (1), he/she shall hold a public
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hearing. <Amended by Act No. 11654, Mar. 22, 2013>
(3) Necessary matters for the standards and procedures for the cancellation of
designation or suspension of business operations of specialized institutions under
paragraph (1) shall be prescribed by Ordinance of the Ministry of Trade, Industry
and Energy. <Amended by Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23,
2013>
[This Article Wholly Amended by Act No. 8197, Jan. 3, 2007]
Article 59 (Request for Examination of Patent Application) (1) A patent application
shall be examined only upon the filing of a request for examination.
(2) When a patent application has been filed, any person may request the
Commissioner of the Korean Intellectual Property Office to examine the patent
application within five years from the filing date thereof: Provided, That an applicant
for a patent may request for examination of a patent application, only if the
specification stating the scope of claims is attached. <Amended by Act No. 8197,
Jan. 3, 2007>
(3) With respect to a patent application, divisional application, or converted
application filed by a lawful right holder under Article 34 or 35, the right holder may
request the examination of the application within 30 days from the date of filing the
patent application, divisional application, or converted application, even after the
lapse of the period specified in paragraph (2). <Amended by Act No. 5576, Sep. 23,
1998; Act No. 7871, Mar. 3, 2006; Act No. 11654, Mar. 22, 2013>
(4) No request for examination of an application shall be withdrawn.
(5) If a request for examination has not been made within the period prescribed in
paragraph (2) or (3), the patent application concerned shall be deemed to have been
withdrawn.
Article 60 (Procedure for Request for Examination) (1) Any person intending to
request examination of an application shall submit a written request for examination
of an application to the Commissioner of the Korean Intellectual Property Office,
stating the following: <Amended by Act No. 6768, Dec. 11, 2002>
1. The name and the domicile of the person making the request (in cases of a
juristic person, its title and the location of its place of business);
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2. Deleted;<by Act No. 6768, Dec. 11, 2002>
3. The identification of the patent application for which the request for examination
is made.
(2) The Commissioner of the Korean Intellectual Property Office shall, where a
request for examination has been made prior to the publication of an application,
publish such fact in the Patent Gazette at the time the application is laid open. Where
a request for examination has been made after the application is laid open, the
Commissioner shall publish such fact in the Patent Gazette without delay.
(3) Where a request for examination of an application has been made by a person,
other than the applicant, the Commissioner of the Korean Intellectual Property Office
shall notify the applicant of such fact.
Article 61 (Accelerated Examination)
The Commissioner of the Korean Intellectual Property Office may direct an examiner
to examine one application in preference over another if the former falls under any of
the following subparagraphs:
1. Where a person, other than the applicant, is commercially and industrially working
the invention claimed in a patent application after the laying-open of the
application;
2. Where the Commissioner of the Korean Intellectual Property Office deems it
necessary to urgently process a patent application prescribed by Presidential
Decree.
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
Article 62 (Decision to Reject Patent Application)
Any examiner shall make a decision to reject a patent application where the invention
falls under any of the following subparagraphs (hereinafter referred to as "grounds
for rejection"):<Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006; Act No.
8197, Jan. 3, 2007>
1. Where the invention is not patentable under Article 25, 29, 32, 36 (1) through
(3), or 44;
2. Where the application is filed by a person who does not have the right to obtain a
patent therefor under the main sentence of Article 33 (1) or where the invention is
not patentable under the proviso to the said Article 33 (1);
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3. Where it is in violation of a treaty;
4. Where it has not satisfied the requirements prescribed under Article 42 (3), (4)
and (8) or 45;
5. Where the application is amended beyond the scope under Article 47 (2);
6. Where the application is a divisional application filed beyond the scope under
Article 52 (1);
7. Where the application is a converted application beyond the scope under Article
53 (1).
Article 63 (Notice of Grounds for Rejection) (1) Where an examiner intends to render
a decision to reject a patent application under Article 62, he/she shall notify the
applicant of the grounds therefor and provide the applicant an opportunity to present
his/her written opinions within a fixed period: Provided, That this shall not apply
where the examiner intends to reject an amendment pursuant to Article 51 (1).
<Amended by Act No. 6411, Feb. 3, 2001; Act No. 9381, Jan. 30, 2009>
(2) Where an examiner notifies the grounds to reject under the main sentence of
paragraph (1) with regard to a patent application with two or more claims in its
scope of patent application, he/she shall clearly state in the notice the claims refused
and specifically describe the grounds for rejection of such claims. <Newly Inserted
by Act No. 8197, Jan. 3, 2007; Act No. 9381, Jan. 30, 2009>
Article 63-2 (Furnishing of Information concerning Patent Applications)
Any person may, at the time a patent application is filed, furnish the Commissioner of
the Korean Intellectual Property Office with information together with evidence, to
the effect that the invention concerned is unpatentable, because it falls under
grounds for rejection: Provided, That this shall not apply where the requirements
prescribed in Articles 42 (3) 2 and (8) and 45 are not complied therewith.<Amended
by Act No. 8197, Jan. 3, 2007; Act No. 10716, May 24, 2011>
[This Article Newly Inserted by Act No. 7871, Mar. 3, 2006]
Article 64 (Laying-Open of Applications) (1) Under Ordinance of the Ministry of
Trade, Industry and Energy, the Commissioner of the Korean Intellectual Property
Office shall lay open a patent application in the Patent Gazette at the time one year
and six months have elapsed since any of the following dates or before one year and
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six months have elapsed since the filling date of a patent application, upon request
from the applicant: Provided, That in cases of a patent application which is
accompanied by the specification not stating the scope of claims in accordance with
the former sentence other than the subparagraphs of Article 42 (5) and a patent
whose registration has already been published in accordance with Article 87 (3),
they shall not be subject to the laying-open of the application: <Amended by Act
No. 5080, Dec. 29, 1995; Act No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001;
Act No. 8197, Jan. 3, 2007; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23,
2013>
1. Where a patent application contains a priority claim under Article 54 (1), the
filing date being the basis for claiming a priority right shall apply;
2. Where a patent application contains a priority claim under Article 55 (1), the
filing date of the earlier application shall apply;
3. The earliest filing date among the filing dates of two or more applications that are
the basis for claiming a priority right in a patent application under Article 54 (1) or
55 (1);
4. Where a patent application does not fall under any of subparagraphs 1 through 3,
the filing date of the patent application shall apply.
(2) Deleted. <by Act No. 7871, Mar. 3, 2006>
(3) Article 87 (4) shall apply mutatis mutandis to the laying-open of applications
under paragraph (1). <Amended by Act No. 5329, Apr. 10, 1997>
(4) Matters to be published in the Patent Gazette with respect to the laying-open of
applications under paragraph (1) shall be prescribed by Presidential Decree.
Article 65 (Effects of Laying-Open of Application) (1) After an application is laid
open, an applicant may warn a person who has commercially or industrially worked
the filed invention, in writing indicating that a patent application for the invention has
been filed.
(2) An applicant may demand a person who has commercially or industrially worked
the filed invention after being warned as provided for in paragraph (1) or knowing
that an application for the invention has been laid open, to pay compensation in an
amount equivalent to what he/she would have normally received for the working of
the invention from the date of warning or the time when he/she knew that the patent
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application of the invention had been laid open to the time of the registration of the
patent right. <Amended by Act No. 5329, Apr. 10, 1997>
(3) The right to demand compensation as provided for in paragraph (2) shall be
exercised only after the registration of the patent right. <Amended by Act No. 5329,
Apr. 10, 1997>
(4) The exercise of the right to demand compensation under paragraph (2) shall not
preclude the exercise of the patent right. <Amended by Act No. 5329, Apr. 10,
1997>
(5) Articles 127, 129 and 132 of this Act, or Articles 760 and 766 of the Civil Act
shall apply mutatis mutandis to the exercise of the rights to demand compensation
under paragraph (2). In such cases, "date on which the injured party or his/her legal
representative became aware of such damage and of the identity of the person who
caused it" in Article 766 (1) of the Civil Act shall be construed as "date of
registration of the patent right involved." <Amended by Act No. 5329, Apr. 10, 1997;
Act No. 7871, Mar. 3, 2006>
(6) When a patent application is abandoned, invalidated or withdrawn after the
laying-open of the application, and when a decision to reject a patent application or a
decision to invalidate a patent under Article 133 (excluding cases as prescribed in
Article 133 (1) 4) have become final and conclusive, the right under paragraph (2)
shall be deemed never to have existed. <Newly Inserted by Act No. 5329, Apr. 10,
1997; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006>
[This Article Wholly Amended by Act No. 5080, Dec. 29, 1995]
Article 66 (Decision to Grant Patent)
Where an examiner does not find any grounds to reject a patent application, he/she
shall render a decision to grant a patent.<Amended by Act No. 6411, Feb. 3, 2001>
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
Article 66-2 (Ex Officio Amendment, etc.) (1) Where an examiner finds any clear
clerical error in the specification, drawings or abstract attached to a patent
application when he/she makes a decision to grant a patent, he/she may amend such
error ex officio (hereinafter referred to as "ex officio amendment").
(2) In order for an examiner to amend ex officio in accordance with paragraph (1),
he/she shall notify the applicant of such ex officio amendment while delivering a
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certified copy of the decision to grant a patent in accordance with Article 67 (2).
(3) If a patent applicant cannot accept the whole or part of an ex officio amendment,
he/she shall present his/her written opinion on such ex officio amendment to the
Commissioner of the Korean Intellectual Property Office by the time he/she pays a
patent fee pursuant to Article 79 (1).
(4) Where a patent applicant has presented a written application pursuant to
paragraph (3), the whole or part of the relevant ex officio amendment shall be
deemed never to have existed.
(5) Where an ex officio amendment has been made for any matter which is not a
clear clerical error, such ex officio amendment shall be deemed never to have
existed.
[This Article Newly Inserted by Act No. 9381, Jan. 30, 2009]
Article 67 (Formalities for Decision of Patentability) (1) A decision to either grant or
reject a patent (hereinafter referred to as "decision of patentability") shall be made
in writing and shall state the grounds therefor. <Amended by Act No. 6411, Feb. 3,
2001>
(2) Where a decision of patentability has been rendered, the Commissioner of the
Korean Intellectual Property Office shall serve a certified copy of the decision on the
patent applicant. <Amended by Act No. 6411, Feb. 3, 2001>
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
Article 67-2 (Request for Re-examination) (1) A patent applicant may, within 30
days (where a period under Article 132-3 has been extended pursuant to Article 15
(1), referring to such extended period) from the date of receipt of a certified copy of
the decision to reject the patent application, request a re-examination (hereinafter
referred to as "re-examination") on the relevant patent application after amendment
to the specification or drawings attached to the patent application: Provided, that this
shall not apply where there exists a decision to reject a patent following the re-
examination or a request for trial pursuant to Article 132-3.
(2) Where a request for re-examination is made in accordance with para graph (1),
a decision to reject a patent application previously made for the relevant patent
application shall be deemed to have been withdrawn.
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(3) No request for re-examination pursuant to paragraph (1) shall be withdrawn.
[This Article Newly Inserted by Act No. 9381, Jan. 30, 2009]
Article 67-3 (Restoration of Patent Application) (1) If it is deemed that a patent
application has been withdrawn or a decision of refusal of a patent has become final
and conclusive because the patent applicant fails to comply with either of the
following periods due to a cause not imputable to the patent applicant, the patent
applicant may request the examination or re-examination of the patent application
within two months from the date when the cause ceases to exist: Provided, That the
foregoing 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), it shall be
deemed that the patent application has not been withdrawn or the decision of refusal
of a patent has not become final and conclusive.
[This Article Newly Inserted by Act No. 11654, Mar. 22, 2013]
Article 68 (Mutatis Mutandis Application of Provisions concerning Trial to Examination)
Subparagraph 1 through 5 and 7 of Article 148 shall apply mutatis mutandis to the
examination of patent applications.
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
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>
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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 of a patent application may, if necessary, be suspended until a trial
decision thereon becomes final and conclusive or litigation procedures concerned
have been complete. <Amended by Act No. 7871, Mar. 3, 2006>
(2) The court may, if necessary, suspend litigation procedures until a decision on a
patent application becomes final and conclusive. <Amended by Act No. 7871, Mar. 3,
2006>
(3) No appeal shall be made against the suspension under paragraphs (1) and (2).
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
Article 78-2 Deleted.<by Act No. 7871, Mar. 3, 2006>
CHAPTER IV PATENT FEES AND PATENT REGISTRATIONS, ETC.
Article 79 (Patent Fees) (1) Any person who intends to obtain the registration of
establishment of a patent right in accordance with Article 87 (1) shall pay patent
fees for three years from the date when he/she intends to obtain the registration of
establishment of the patent right (hereinafter referred to as "registration date of
establishment"), and a patentee shall pay, on a yearly basis, a patent fee for one year
from the following year based on the date falling under the registration date of
establishment of the relevant right.
(2) Notwithstanding paragraph (1), a patentee may pay patent fees for several or
entire years according to the order of years of payment in a lump sum.
(3) Patent fees, methods and terms of payment thereof under paragraphs (1) and
(2), and other necessary matters shall be prescribed by Ordinance of the Ministry of
Trade, Industry and Energy. <Amended by Act No. 11690, Mar. 23, 2013>
[This Article Wholly Amended by Act No. 9381, Jan. 30, 2009]
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Article 80 (Payment of Patent Fees by Interested Party) (1) Regardless of the intent of
a person liable to pay patent fees, any interested party may pay the patent fees.
(2) An interested party who has paid patent fees in accordance with paragraph (1)
may demand reimbursement of his/her expenses to the extent that the person liable
to pay the patent fees is currently making a profit.
Article 81 (Late Payment, etc. of Patent Fees) (1) A patentee or a person intending to
register a patent right may make late payment of the patent fees within six months
following the expiration of the payment period prescribed under Article 79 (3).
<Amended by Act No. 9381, Jan. 30, 2009>
(2) In cases of late payment of patent fees under paragraph (1), an amount
prescribed by Ordinance of the Ministry of Trade, Industry and Energy shall be paid
within the extent of double the amount of patent fees payable. <Amended by Act No.
9381, Jan. 30, 2009; Act No. 11690, Mar. 23, 2013>
(3) In cases of failing to pay patent fees (where the remaining payment period
provided for in Article 81-2 (2) does not expire in spite of the expiration of the
extended payment period, referring to such cases as failing to pay the remaining
portion of the payment fees within such remaining payment period) within the
extended period provided for in paragraph (1), the patent application by a person
intending to register a patent right shall be deemed to have been abandoned and the
patent right of a patentee shall be deemed to have terminated retroactively on the
next day of the expiry date of the period equivalent to patent fees paid pursuant to
Article 79 (1) and (2). <Amended by Act No. 6768, Dec. 11, 2002; Act No. 9381,
Jan. 30, 2009>
Article 81-2 (Remainder Payment) (1) Where a patentee or a person intending to
register a patent right fails to pay some of the patent fees within the period fixed
under Article 79 (3) or 81 (1), the Commissioner of the Korean Intellectual Property
Office shall order him/her to pay the remaining portion of the patent fees. <Amended
by Act No. 9381, Jan. 30, 2009>
(2) A person ordered to pay the remaining portion under paragraph (1) may pay the
remaining portion of the patent fees within one month after the order is received.
(3) A person who pays the remaining portion of the patent fees under paragraph (2)
shall pay an amount prescribed by Ordinance of the Ministry of Trade, Industry and
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Energy within the extent of double the amount of patent fees not paid, if he/she falls
under either of the following subparagraphs: <Amended by Act No. 9381, Jan. 30,
2009; Act No. 11690, Mar. 23, 2013>
1. Where he/she pays the remaining portion of the patent fees after the lapse of the
period of payment under Article 79 (3);
2. Where he/she pays the remaining portion of the patent fees after the lapse of the
period of late payment under Article 81 (1).
[This Article Newly Inserted by Act No. 6768, Dec. 11, 2002]
Article 81-3 (Restoration, etc. of Patent Application or Patent Right by Late Payment or
Remaining Payment of Patent Fees) (1) If a person who intends to obtain the
registration of a patent right or a patentee fails to pay patent fees by the deadline for
late payment of the patent fees specified in Article 81 (1) or the deadline for
remaining payment of the patent fees specified in Article 81-2 (2) due to any cause
not imputable to him/her, he/she may pay the patent fees or the remaining portion
thereof within two months from the date on which such cause ceases to exist:
Provided, That the foregoing shall not apply where one year has elapsed since the
deadline for late payment or remaining payment, whichever is later. <Amended by
Act No. 6768, Dec. 11, 2002; Act No. 11654, Mar. 22, 2013>
(2) Notwithstanding Article 81 (3), a person who has paid the patent fees or the
remaining portion thereof in accordance with paragraph (1) shall be deemed not to
have abandoned the patent application and the relevant patent right shall be deemed
to have existed continuously. <Amended by Act No. 6768, Dec. 11, 2002; Act No.
9381, Jan. 30, 2009>
(3) Where the patent right of a patented invention in execution has been
extinguished, because the patent fee was not paid within the extended payment
deadline under Article 81 (1) or the remaining portion thereof was not paid within
the remaining payment period under Article 81-2 (2), the relevant patentee may
apply to restore the relevant extinguished right by paying three times the amount of
the patent fees under Article 79 within three months from the expiration date of the
extended payment deadline or of the remaining payment period. In such cases, the
relevant patent right shall be deemed to have existed continuously. <Newly Inserted
by Act No. 7554, May 31, 2005; Act No. 9381, Jan. 30, 2009>
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(4) The effects of a patent application or a patent right under paragraph (2) or (3)
shall not extend to another person's working of the patented invention during a
period from the date of expiration of the extended period for late payment of the
patent fees to the date of actual payment or remainer payment of the patent fees
(hereafter referred to as "period of limited effect" in this Article). <Amended by Act
No. 6768, Dec. 11, 2002; Act No. 7554, May 31, 2005>
(5) During the period of limited effect, a person who has been commercially or
industrially working or preparing to work an invention in good faith under a patent
application or patent right in accordance with paragraph (2) or (3) in the Republic of
Korea, shall have a non-exclusive license on that patent right under the patent
application within the scope of the object of the invention or business that he/she is
working or preparing to work. <Amended by Act No. 7554, May 31, 2005>
(6) A person who has been granted a non-exclusive license in accordance with
paragraph (5) shall pay reasonable consideration to the patentee or exclusive
licensee. <Amended by Act No. 7554, May 31, 2005>
[This Article Newly Inserted by Act No. 6411, Feb. 3, 2001]
Article 82 (Official Fees) (1) A person initiating a patent-related procedure shall pay
an official fees.
(2) Where the number of claims is increased because of the amendments to the
specification after a request for examination made by a person, other than the
applicant, the applicant shall pay the fees for the request for examination
corresponding to the increased number of claims. <Amended by Act No. 6411, Feb.
3, 2001>
(3) Matters necessary for the payment of official fees, the payment methods and
deadline thereof under paragraph (1), and other necessary matters shall be
prescribed by Ordinance of the Ministry of Trade, Industry and Energy. <Amended
by Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6768, Dec. 11,
2002; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
Article 83 (Reduction or Exemption of Patent Fees or Official Fees) (1)
Notwithstanding Articles 79 and 82, the Commissioner of the Korean Intellectual
Property Office shall grant an exemption from paying any of the following patent fees
or official fees:<Amended by Act No. 11117, Dec. 2, 2011>
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1. Official fees or patent fees corresponding to the patent applications or patent
rights belonging to the State;
2. Official fees related to requests for an invalidation trial made by an examiner
under Article 133 (1), 134 (1) and (2) or 137 (1).
(2) Notwithstanding Articles 79 and 82, where a patent application has been filed by
a person eligible for assistances in accordance with Article 5 of the National Basic
Living Security Act or a person prescribed by Ordinance of the Ministry of Trade,
Industry and Energy, the Commissioner of the Korean Intellectual Property Office
may reduce or exempt the payment of the official fees prescribed by Ordinance of
the Ministry of Trade, Industry and Energy and the patent fees for obtaining the
establishment registration of a patent right for the first three years. <Amended by
Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6024, Sep. 7,
1999; Act No. 6768, Dec. 11, 2002; Act No. 7871, Mar. 3, 2006; Act No. 8852, Feb.
29, 2008; Act No. 11690, Mar. 23, 2013>
(3) A person who intends to take advantage of reduction or exemption of patent
fees or official fees in accordance with paragraph (2) shall submit documents
prescribed by Ordinance of the Ministry of Trade, Industry and Energy to the
Commissioner of the Korean Intellectual Property Office. <Amended by Act No.
4541, Mar. 6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6768, Dec. 11, 2002; Act
No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
Article 84 (Refund of Patent Fees, etc.) (1) No patent fees or official fees paid shall
be refunded: Provided, That such fees shall be refunded at the payer's request in any
of the following cases: <Amended by Act No. 5329, Apr. 10, 1997; Act No. 6411,
Feb. 3, 2001; Act No. 7871, Mar. 3, 2006; Act No. 8197, Jan. 3, 2007; Act No.
11654, Mar. 22, 2013>
1. Patent fees or official fees paid erroneously;
2. Portions corresponding to the patent fees for the years subsequent to the year in
which a trial decision of invalidation on the patent becomes final and conclusive;
3. Portions corresponding to the patent fees for the years subsequent to the year in
which a trial decision of invalidation on the registration of patent term extension
becomes final and conclusive;
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4. Application fees for a patent, fees for a request for examination, and fees for a
priority claim, out of the fees already paid, where the patent application concerned
has been withdrawn or abandoned within one month after such application was filed
(excluding a divisional application, converted application, and patent application for
which a request for accelerated examination has been made under Article 61).
(2) When any patent fee or official fee paid falls under any subparagraph of
paragraph (1), the Commissioner of the Korean Intellectual Property Office shall
issue a notification to the party who paid such fees. <Newly Inserted by Act No.
6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006>
(3) Refund of patent fees and official fees under the proviso to paragraph (1) may
not be claimed if more than three years have elapsed from the date of receiving the
notification under paragraph (2). <Amended by Act No. 7871, Mar. 3, 2006; Act No.
8462, May 17, 2007>
[This Article Wholly Amended by Act No. 4594, Dec. 10, 1993]
Article 85 (Patent Register) (1) The Commissioner of the Korean Intellectual Property
Office shall keep the Patent Register at the Korean Intellectual Property Office and
shall register the following matters: <Amended by Act No. 6768, Dec. 11, 2002>
1. The establishment, transfer, extinguishment, recovery, restriction on disposal, or
extension of the term of a patent right;
2. The establishment, maintenance, transfer, modification, extinguishment, or
restriction on disposal of an exclusive or non-exclusive license;
3. The establishment, transfer, modification, extinguishment or restriction on the
disposal of a pledge on a patent right or on an exclusive or non-exclusive license.
(2) All or parts of the Patent Register under paragraph (1) may be stored on
magnetic tapes, etc.
(3) Necessary information relating to the matters and procedures of registration not
provided for in paragraphs (1) and (2) shall be prescribed by Presidential Decree.
(4) Specifications and drawings of patented inventions and other documents
prescribed by Presidential Decree shall be deemed part of the Patent Register.
Article 86 (Issuance of Patent Registration Certificate) (1) When a patent right has
been registered, the Commissioner of the Korean Intellectual Property Office shall
issue a patent registration certificate to the relevant patentee.
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(2) Where a patent registration certificate does not coincide with the Patent
Register or other documents, the Commissioner of the Korean Intellectual Property
Office shall reissue the patent registration certificate with amendments, or issue a
new patent registration certificate upon request or ex officio.
(3) When a decision on a trial for amendment under Article 136 (1) has become
final and conclusive, the Commissioner of the Korean Intellectual Property Office
shall issue a new patent registration certificate in accordance with the trial decision.
CHAPTER V PATENT RIGHT
Article 87 (Registration of Establishment of Patent Right and Publication of Registration)
(1) A patent right shall enter into effect upon establishment of registration thereof.
(2) The Commissioner of the Korean Intellectual Property Office shall register the
establishment of a patent right in any case of the following subparagraphs:
<Amended by Act No. 7871, Mar. 3, 2006>
1. Where the payment of patent fees has been made in accordance with Article 79
(1);
2. Where the late payment of patent fees has been made in accordance with Article
81 (1);
3. Where the remaining portion of patent fees has been paid in accordance with
Article 81-2 (2);
4. Where the patent fees or the remaining portion thereof has been paid in
accordance with Article 81-3 (1);
5. Where an exemption from the payment of patent fees has been granted under
Article 83 (1) 1 and (2).
(3) Where registration has been made under paragraph (2), the Commissioner of
the Korean Intellectual Property Office shall publish the grant of the patent together
with the relevant information in the Patent Gazette. <Amended by Act No. 5329,
Apr. 10, 1997>
(4) The publication of the registration of a patented invention required to be treated
confidentially shall be reserved until it is declassified, and upon declassification, the
registration shall be published without delay. <Newly Inserted by Act No. 5329, Apr.
10, 1997>
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(5) The Commissioner of the Korean Intellectual Property Office shall provide
application documents and attached materials thereof for public inspection for a
period of three months from the date of publication of registration. <Newly Inserted
by Act No. 5329, Apr. 10, 1997>
(6) Matters to be published in the Patent Gazette with respect to the publication of
registration under paragraph (3) shall be prescribed by Presidential Decree. <Newly
Inserted by Act No. 5329, Apr. 10, 1997>
Article 88 (Term of Patent Right) (1) The term of a patent right shall commence upon
registration of the patent right under Article 87 (1) and last for 20 years from the
filing date of the patent application. <Amended by Act No. 5329, Apr. 10, 1997; Act
No. 6411, Feb. 3, 2001>
(2) Where a patent is granted to a lawful holder of the right under Articles 34 and
35, the term of a patent right under paragraph (1) shall be calculated from the date
following the filing date of the patent application by the unentitled person. <Amended
by Act No. 5080, Dec. 29, 1995>
(3) Deleted. <by Act No. 6411, Feb. 3, 2001>
(4) Deleted. <by Act No. 7871, Mar. 3, 2006>
Article 89 (Extension of Term of Patent Right by Permit, etc) (1) When any one
intends to implement a patented invention, he/she shall obtain a permit or file for
registration under other Acts and subordinate statues, and, in cases of an invention
prescribed by Presidential Decree, which takes a long time due to activity or safety
tests, etc. required for such permit or registration. etc. (hereinafter referred to as
"permit, etc."), the term of the relevant patent right may be extended up to five
years, during which the relevant invention cannot be implemented, notwithstanding
the provisions of Article 88 (1).
(2) In applying the provisions of paragraph (1), the period which has lapsed due to
grounds attributable to patentees shall not be included in "period during which the
relevant invention cannot be implemented" pursuant to paragraph (1).
[This Article Wholly Amended by Act No. 11117, Dec. 2, 2011]
Article 90 (Applications to Register Extension of Term of Patent Right by Permit, etc.)
(1) A person who intends to apply to register the extension of a patent right under
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Article 89 (1) (hereafter referred to as "applicant for registration of extension" in
this Article and Article 91) shall submit an application for registration of an
extension of the term of a patent right to the Commissioner of the Korean Intellectual
Property Office, stating each of the following: <Amended by Act No. 4541, Mar. 6,
1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb.
29, 2008; Act No. 11117, Dec. 2, 2011; Act No. 11690, Mar. 23, 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 place of business);
2. The name and domicile, or location of place of business, of the representative, if
designated (if the representative is a patent corporation, its name, location of office
and designated patent attorney's name);
3. The identification by the number of patent for which an extension is applied, and
the claims of that patent;
4. The period of extension;
5. The requirements for permission, etc. under Article 89 (1);
6. The grounds for extension prescribed by Ordinance of the Ministry of Trade,
Industry and Energy (accompanied by materials substantiating the grounds).
(2) An application to register an extension of the term of a patent right pursuant to
paragraph (1) shall be filed within three months from the date permission, etc. under
Article 89 (1) was obtained: Provided, That such application may not be filed six
months before the term of patent right provided for in Article 88 expires.<Amended
by Act No. 11117, Dec. 2, 2011>
(3) Where a patent right is owned by joint owners, an application to register an
extension of the term of a patent right shall be made in the names of all the joint
owners.
(4) Where an application to register an extension of term of a patent right pursuant
to paragraph (1) has been filed, the term shall be deemed extended: Provided, That
the same shall not apply where a decision of refusal for registration of extension of
term under Article 91 has become final and conclusive.<Amended by Act No. 5329,
Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act No. 11117, Dec. 2, 2011>
(5) Where an application to register an extension of the term of a patent right
pursuant to paragraph (1) has been filed, the Commissioner of the Korean
Intellectual Property Office shall publish the information prescribed in paragraph (1)
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in the Patent Gazette.<Amended by Act No. 11117, Dec. 2, 2011>
(6) An applicant for registration of an extension may make an amendment to the
matters referred to in paragraph (1) 3 through 6, which are described in the
application for registration of an extension (excluding the patent number of the
patent right to be extended under subparagraph 3) until the examiner transmits a
certified copy of the decision for registration or rejection of the extension: Provided,
That after receiving a notice of grounds for rejection which is applicable mutatis
mutandis pursuant to Article 93, he/she may make an amendment in the period for
presentation of a written opinion only, according to the relevant notice of grounds for
rejection. <Newly Inserted by Act No. 6411, Feb. 3, 2001; Act No. 9381, Jan. 30,
2009>
Article 91 (Decision of Rejecting Application to Register Extension of Term of Patent
Right by Permit, etc)
An examiner shall make a decision to reject an application to register an extension of
the term of a patent right pursuant to Article 90 when it falls under any of the
following subparagraphs:<Amended by Act No. 6411, Feb. 3, 2001; Act No. 11117, Dec. 2,
2011>
1. When a permit etc. under Article 89 (1) is deemed unnecessary for implementing
the relevant patented invention;
2. When the relevant patentee or any person who has an exclusive license or
registered non-exclusive license related to the relevant patent right fails to obtain
a permit, etc. under Article 89 (1);
3. When the period of an application for extension exceeds the period during which
the relevant patented invention could not have been implemented pursuant to
Article 89;
4. When an applicant for the registration of extension is not the relevant patentee;
5. When an application for the registration of extension has been filed, in violation of
Article 90 (3).
Article 92 (Decision, etc. to Register Extending Term of Patent Right by Permit, etc)
(1) Where an examiner finds no reason falling under any subparagraph of Article 91
with regard to an application for registration of an extension of the term of a patent
right under Article 90, he/she shall render the decision of the registration.
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<Amended by Act No. 6411, Feb. 3, 2001; Act No. 11117, Dec. 2, 2011; Act No.
11654, Mar. 22, 2013>
(2) When a decision to register the extension has been made under paragraph (1),
the Commissioner of the Korean Intellectual Property Office shall register the
extension of the term of the patent right in the Patent Register. <Amended by Act
No. 6411, Feb. 3, 2001>
(3) When the registration under paragraph (2) has been made, the information
prescribed in the following subparagraphs shall be published in the Patent Gazette:
<Amended by Act No. 6411, Feb. 3, 2001; Act No. 11117, Dec. 2, 2011>
1. The name and domicile of a patentee (if the patentee is a legal entity, its title and
the location of its place of business);
2. The patent number;
3. The date of registration of the extension;
4. The period of the extension;
5. The requirements for permission, etc. under Article 89 (1).
attributable to the patentee.<Amended by Act No. 5576, Sep. 23, 1998>
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
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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
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 the
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>
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 place);
2. The name and domicile of an agent or the location of business place, when the
agent of an applicant for registration of extension exists (if the agent is a patent
office, its title, location of its business place and the name of a designated patent
attorney);
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3. The patent number of a patent right 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 when the
establishment of a patent right is registered.
(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, 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 in the period for submission of written opinions following the
relevant notice on grounds for refusal.
[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
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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 the examination of an application for registration of an extension
of the term of a patent right.
[This Article Wholly Amended by Act No. 11117, Dec. 2, 2011]
Article 94 (Effects of Patent Right)
A patentee shall have the exclusive right to work a patented invention both
commercially and industrially: Provided, That where the patent right is the subject of
an exclusive license, this shall not apply to the extent that the exclusive licensee has
the exclusive right to work the patented invention under Article 100 (2).
Article 95 (Effects of Patent Right with its Term Extended by Permit, etc)
The effects of a patent right, the term of which has been extended pursuant to
Article 90 (4), shall not extend to any other acts except the working of the patented
invention with respect to such products for which permission, etc. was the basis for
registering the extension (or where permission, etc. was obtained for any specific
use of the product, with respect to the product adapted for such specific use).
<Amended by Act No. 11117, Dec. 2, 2011>
Article 96 (Limitations on Patent Rights) (1) The effects of the patent right shall not
extend to the following: <Amended by Act No. 9985, Jan. 27, 2010>
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1. Working of the patented invention for the purpose of research or experiments
(including item permission or reporting on medicines under the Pharmaceutical
Affairs Act, and research or experiments for registration of agrochemicals under
the Agrochemicals Control Act);
2. Vessels, aircraft or vehicles merely passing through the Republic of Korea, or
machinery, instruments, equipment or other accessories used therein;
3. Articles existing in the Republic of Korea as at the time the patent application was
filed.
(2) The effects of the patent right for inventions of a medicine (referring to
products used for diagnosis, therapy, alleviation, medical treatment or prevention of
human diseases; hereinafter the same shall apply) manufactured by mixing two or
more medicines, or for inventions of processes for manufacturing medicines by
mixing two or more medicines, shall not extend to the acts of manufacturing
medicines or to medicines manufactured by such acts in accordance with the
Pharmaceutical Affairs Act. <Amended by Act No. 7871, Mar. 3, 2006>
Article 97 (Scope of Protection of Patented Invention)
The scope of protection conferred by a patented invention shall be determined by the
subject matters described in the claims.
Article 98 (Relation to Patented Invention, etc. of Another Person)
Where the working of a patented invention would infringe another person's patented
invention, registered utility model or registered design or similar design under an
application filed prior to the filing date of the patent application concerned, or where
a patent right conflicts with another person's design right or trademark right under
an application for registration for a design right or trademark right filed prior to the
filing date of the patent application concerned, the patentee, exclusive licensee or
non-exclusive licensee shall not work the patented invention commercially or
industrially without permission from the owner of the earlier patent, utility model
right, or design right, or trademark right.<Amended by Act No. 4594, Dec. 10, 1993; Act No.
6411, Feb. 3, 2001; Act No. 7289, Dec. 31, 2004>
Article 99 (Transfer and Joint Ownership of Patent Right) (1) A patent right may be
transferred.
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(2) Where a patent right is owned jointly, each joint owner of the patent right may
neither transfer his/her share nor establish a pledge upon it without the consent of all
the other joint owners.
(3) Where a patent right is owned jointly, each joint owner may, except as
otherwise agreed in a contract among all the joint owners, work the patented
invention by himself/herself without the consent of the other joint owners.
(4) Where a patent right is owned jointly, each joint owner of the patent right may
not grant an exclusive license or a non-exclusive license of the patent right without
the consent of the other joint owners.
Article 100 (Exclusive License) (1) A patentee may grant an exclusive license of the
patent right to others.
(2) An exclusive licensee having been granted an exclusive license under paragraph
(1), shall have the exclusive right to work the patented invention commercially or
industrially to the extent provided for in the license contract.
(3) No exclusive licensee may transfer the license without the consent of the
patentee, unless it is transferred together with the underlying business, or by
inheritance or other general succession.
(4) No exclusive licensee may establish a pledge nor grant a nonexclusive license
on the exclusive license without the consent of the patentee.
(5) Article 99 (2) through (4) shall apply mutatis mutandis to exclusive licenses.
Article 101 (Effects of Registration of Patent Right and Exclusive License) (1) The
following matters shall be of no effect unless they are registered: <Amended by Act
No. 6411, Feb. 3, 2001>
1. The transfer (excluding transfer by inheritance or other general succession) or
extinguishment by abandonment, or restriction on disposal of a patent right;
2. The grant, transfer (excluding transfer by inheritance or other general
succession), modification, extinguishment (excluding extinguishment by confusion),
or restriction on disposal of an exclusive license;
3. The establishment, transfer (excluding transfer by inheritance or other general
succession), modification, extinguishment (excluding extinguishment by confusion),
or restriction on disposal of a pledge on a patent right or exclusive license.
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(2) Inheritance of, or other general succession relating to a patent right, exclusive
license, and pledge under paragraph (1) shall be notified without delay to the
Commissioner of the Korean Intellectual Property Office.
Article 102 (Non-exclusive License) (1) A patentee may grant to others a non-
exclusive license on his/her patent right.
(2) A non-exclusive licensee shall have the right to work the patented invention
commercially or industrially to the extent prescribed in this Act or provided for by
the license contract. <Amended by Act No. 4594, Dec. 10, 1993>
(3) A non-exclusive license granted under Article 107 may only be transferred
together with the underlying business. <Amended by Act No. 5080, Dec. 29, 1995>
(4) A non-exclusive license under Article 138 of this Act, Article 32 of the Utility
Model Act, or Article 70 of the Design Protection Act shall be transferred together
with the patent right, utility model right, or design right concerned and shall be
extinguished as at the same time the patent, utility model or design right concerned
is extinguished. <Amended by Act No. 5576, Sep. 23, 1998; Act No. 7289, Dec. 31,
2004; Act No. 7871, Mar. 3, 2006>
(5) No non-exclusive license, other than those described in paragraphs (3) and (4),
may be transferred without the consent of the patentee (or the patentee and the
exclusive licensee in cases of a non-exclusive license on an exclusive license),
unless it is transferred together with the underlying business, or by inheritance or
other general succession. <Amended by Act No. 5080, Dec. 29, 1995; Act No. 6411,
Feb. 3, 2001>
(6) No pledge may be established on a non-exclusive license, other than those
under paragraphs (3) and (4), without the consent of the patentee (or the patentee
and the exclusive licensee in cases of a non-exclusive license on an exclusive
license).
(7) Article 99 (2) and (3) shall apply mutatis mutandis to non-exclusive licenses.
<Amended by Act No. 4594, Dec. 10, 1993>
Article 103 (Non-exclusive License by Prior Use)
At the time of filing of a patent application, a person who has made an invention
without having prior knowledge of the contents of an invention described in an
existing patent application, or has learned how to make the invention from such
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person and has been working the invention commercially or industrially in the
Republic of Korea, in good faith, or has been making preparations therefor, shall have
a non-exclusive license on that patent right for the invention under the patent
application. Such license shall be limited to the invention which is being worked, or
for which preparations for working have been made, and to the purpose of such
working or preparations.<Amended by Act No. 6411, Feb. 3, 2001>
Article 104 (Non-exclusive License due to Working prior to Registration of Request for
Invalidation Trial) (1) Where a person falling under any of the following
subparagraphs has been working an invention or a device in the Republic of Korea
commercially or industrially, or has been making preparations therefor, prior to the
registration of a request for an invalidation trial of the patent or registered utility
model concerned, without knowing that his/her patented invention or registered
utility model is subject to invalidation, such person shall have a non-exclusive
license on that patent right or have a non-exclusive license on the exclusive license
to a patent right existing at the time the patent or the utility model registration was
invalidated, but such non-exclusive license shall be limited to the invention or device
which is being worked or for which preparations for working are being made and to
the purpose of such working or the preparations therefor: <Amended by Act No.
5576, Sep. 23, 1998; Act No. 7871, Mar. 3, 2006>
1. The original patentee, where one of two or more patents granted for the same
invention has been invalidated;
2. The original owner of a utility model right, where a patented invention and a
device registered as a utility model are the same and the utility model registration
has been invalidated;
3. The original patentee, where his/her patent has been invalidated and a patent for
the same invention has been granted to an entitled person;
4. The original owner of a utility model right, where his/her utility model registration
has been invalidated and a patent for the same invention as the device has been
granted to an entitled person;
5. In cases of subparagraphs 1 through 4, a person who has been granted an
exclusive license or a non-exclusive license, or non-exclusive license on the
exclusive license and has been registered such, at the time of registration of the
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request for an invalidation trial of the invalidated patent right or utility model right:
Provided, That a person falling under Article 118 (2) is not required to register the
license.
(2) A person who has been granted a non-exclusive license in accordance with
paragraph (1) shall pay reasonable consideration to the patentee or exclusive
licensee.
Article 105 (Non-exclusive License after Expiration of Design Right) (1) Where a
design right applied for a patent and registered prior to or on the filing date of a
patent application conflicts with the patent right, and the term of the design right has
expired, the owner of such design right shall have a non-exclusive license on the
patent right or the exclusive license existing at the time the design right expired to
the extent of such design right. <Amended by Act No. 7289, Dec. 31, 2004>
(2) Where a design right applied for a patent and registered prior to or on the filing
date of a patent application conflicts with the patent right, and the term of the design
right has expired, a person who has an exclusive license on the design right existed
at the time of expiration, or non-exclusive license under Article 118 (1) of this Act,
as applied mutatis mutandis by Article 61 of the Design Protection Act related to the
design right or the exclusive license shall have a non-exclusive license on the patent
right concerned or on the exclusive license at the time the design right expired to the
extent of the expired right. <Amended by Act No. 7289, Dec. 31, 2004>
(3) A person who has been granted a non-exclusive license under paragraph (2)
shall pay reasonable consideration to the patentee or exclusive licensee.
Article 106 (Expropriation of Patent Rights) (1) If a patented invention is necessary
for national defense in time of war, uprising, or any other similar emergency, the
Government may expropriate a patent right. <Amended by Act No. 9985, Jan. 27,
2010>
(2) If a patent right is expropriated, rights to the invention, other than the patent
right, shall be extinguished.
(3) If the Government expropriates a patent right under paragraph (1), it shall pay
reasonable compensation to the patentee, exclusive licensee or non-exclusive
licensee. <Amended by Act No. 9985, Jan. 27, 2010>
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(4) Necessary matters concerning the expropriation of patent rights and payment of
compensation therefor shall be prescribed by Presidential Decree. <Amended by Act
No. 9985, Jan. 27, 2010>
Article 106-2 (Working of Patented Invention by Government, etc.) (1) If it is deemed
necessary to non-commercially work a patented invention due to a national or
extreme emergency, or for the public interests, the Government may directly work
the patented invention or have any person, other than the Government, work it.
(2) When the Government or any person, other than the Government, becomes
aware of or is able to know the fact that a patent right retained by a third person
exists, he/she or it shall promptly notify the patentee, exclusive licensee or non-
exclusive licensee of the fact of working under paragraph (1).
(3) When the Government or any person, other than the Government, works a
patented invention pursuant to paragraph (1), he/she or it shall pay reasonable
compensation to the patentee, exclusive licensee or non-exclusive licensee.
(4) Necessary matters concerning working of a patented invention and payment of
compensation shall be prescribed by Presidential Decree.
[This Article Newly Inserted by Act No. 9985, Jan. 27, 2010]
Article 107 (Adjudication for Grant of Non-exclusive License) (1) Where a patented
invention falls under any of the following subparagraphs, and where agreement is not
reached while having a consultation with the patentee or exclusive licensee of the
relevant patented invention on granting a non-exclusive license under reasonable
conditions (hereafter referred to as "consultation" in this Article) or where the
consultation is unable to take place, a person who intends to work the patented
invention may request the Commissioner of the Korean Intellectual Property Office
to adjudicate (hereinafter referred to as "adjudication") for grant of a non-exclusive
license thereon: Provided, That where intended to work the patented invention
noncommercially for the public interests and where falling under the provisions of
subparagraph 4, an adjudication may be applied even if no agreement has been
reached: <Amended by Act No. 7554, May 31, 2005>
1. Where the patented invention has not been worked for three or more consecutive
years in the Republic of Korea, except in cases of natural disaster, unavoidable
circumstances or other justifiable reasons prescribed by Presidential Decree;
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2. Where the patented invention has not been continuously worked commercially or
industrially in the Republic of Korea on a substantial scale during a period of three
or more years without justifiable grounds, or where the demand in the Republic of
Korea for the patented invention has not been satisfied to an appropriate extent and
under reasonable conditions;
3. Where the working of the patented invention is specially necessary for public
interests;
4. Where the working of the patented invention is necessary to remedy a practice
determined to be unfair after the judicial or administrative process;
5. Where the working of the patented invention is necessary for ex porting
medicines (including effective ingredients necessary for medicine production and
diagnosis kits necessary for the use of medicines) to countries intending to import
the medicines (hereafter referred to as "importing countries" in this Article) to
cure diseases that threaten the health of the majority of its citizens.
(2) Paragraph (1) 1 and 2 shall not apply unless a period of four years has lapsed
from the filing date of the application for patent right to the patented invention.
(3) In adjudication for the grant of a non-exclusive license, the Commissioner of
the Korean Intellectual Property Office shall consider the necessity of each and
every claim.
(4) In making an adjudication under paragraph (1) 1 through 3, or 5, the
Commissioner of the Korean Intellectual Property Office shall impose conditions
falling under each of the following subparagraphs on persons subject to the
adjudication: <Amended by Act No. 7554, May 31, 2005>
1. In cases of adjudication under paragraph (1) 1 through 3, the non-exclusive
license shall be mainly worked for the purpose of supplies for sufficiency of
demands in the Republic of Korea;
2. In an adjudication under paragraph (1) 5, all volume of produced medicines shall
be exported to importing countries.
(5) In making an adjudication, the Commissioner of the Korean Intellectual Property
Office shall assure that an appropriate price shall be paid. In such cases, in making an
adjudication under paragraph (1) 4 or 5, matters falling under each of the following
subparagraphs may be considered for a decision of pricing: <Amended by Act No.
7554, May 31, 2005>
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1. In cases of adjudication under paragraph (1) 4, the purport for correcting unfair
trade practices;
2. In cases of adjudication under paragraph (1) 5, the economic values in importing
countries which occur by working the relevant patented inventions.
(6) With respect to semi-conductor technology, the request for adjudication may be
made only in cases set forth in paragraph (1) 3 (limited to noncommercial working
for the public interests) or 4. <Amended by Act No. 7554, May 31, 2005>
(7) The importing countries shall be limited to World Trade Organization member
countries which have notified the World Trade Organization of the following matters,
or non-WTO members prescribed by Presidential Decree which have notified the
Government of the Republic of Korea of the following matters: <Newly Inserted by
Act No. 7554, May 31, 2005>
1. Name and volume of medicines required by importing countries;
2. If importing countries are not the least developed countries listed in a resolution
by the General Assembly of the United Nations, the confirmation of the importing
countries that manufacturing abilities for production of the relevant medicines are
non-existent or insufficient;
3. If the relevant medicines have been patented in an importing country, the
confirmation of the said country that compulsory licensing has been permitted or
intended to be permitted.
(8) Medicines under paragraph (1) 5 mean those falling under any of the following
subparagraphs: <Newly Inserted by Act No. 7554, May 31, 2005>
1. Patented medicines;
2. Medicines produced by the patented manufacturing methods;
3. Patented effective ingredients necessary for the production of medicines;
4. Patented diagnosis kit necessary for the use of medicines.
(9) Documents to be submitted by persons demanding an adjudication and other
matters necessary for the adjudication shall be prescribed by Presidential Decree.
<Newly Inserted by Act No. 7554, May 31, 2005>
[This Article Wholly Amended by Act No. 5080, Dec. 29, 1995]
Article 108 (Submission of Response)
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Upon a request for adjudication, the Commissioner of the Korean Intellectual
Property Office shall transmit a copy of the written request to the patentee or
exclusive licensee mentioned in the request and to any other person having any
registered right relating to the patent, and shall provide them an opportunity to
submit a response within the fixed period.
Article 109 (Hearing of Opinions from Intellectual Property Rights Dispute Coordination
Committee and Heads of Related Ministries)
If recognized as necessary for making an adjudication, the Commissioner of the
Korean Intellectual Property Office may hear opinions from the Intellectual Property
Rights Dispute Coordination Committee under Article 41 of the Invention Promotion
Act and the heads of the related Ministries, and may request the related
administrative agencies or the related persons to cooperate.<Amended by Act No. 8357,
Apr. 11, 2007>
[This Article Wholly Amended by Act No. 7554, May 31, 2005]
Article 110 (Formalities, etc. of Adjudications) (1) An adjudication shall be made in
writing and shall state the grounds therefor.
(2) The following matters shall be specified in an adjudication under paragraph (1):
<Amended by Act No. 5080, Dec. 29, 1995; Act No. 7554, May 31, 2005>
1. The scope and duration of a non-exclusive license;
2. The consideration for the license and method and timing of payment;
3. In cases of adjudication under Article 107 (1) 5, the medicines supplied by the
patentee, exclusive licensee, or non-exclusive licensee (excluding the holder of a
non-exclusive license issued through adjudication) of the relevant patented
invention, externally discernable packaging and markings and the addresses of a
web site that publishes information on the adjudication;
4. Other codes of practice necessary for executing the terms or conditions provided
by Acts and subordinate statutes or treaties to be executed by the person who is
granted the adjudication in working the relevant patented invention.
(3) Except for cases having justifiable grounds, the Commissioner of the Korean
Intellectual Property Office shall make decisions on adjudication within six months
from the date of demanding an adjudication. <Newly Inserted by Act No. 7554, May
31, 2005>
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(4) Where the demand for adjudication under Article 107 (1) 5 falls under
paragraphs (7) and (8) of the said Article and all documents under paragraph (9) of
the same Article are submitted, the Commissioner of the Korean Intellectual
Property Office shall make an adjudication of establishment of the non-exclusive
license, except for cases where justifiable grounds exist. <Newly Inserted by Act
No. 7554, May 31, 2005>
Article 111 (Service of Certified Copies of Adjudication) (1) Where an adjudication is
made, the Commissioner of the Korean Intellectual Property Office shall serve
certified copies of adjudication on the parties and any other person having the
registered right relating to the patent.
(2) When a certified copy of adjudication has been served on the parties under
paragraph (1), consultation to the terms as specified in the adjudication shall be
deemed to have been held by the parties.
Article 111-2 (Alteration of Written Adjudication) (1) Where any alteration is required
on the matters of Article 110 (2) 3 which are specified on the written adjudication,
the person who is granted the adjudication may request such to the Commissioner of
the Korean Intellectual Property Office by attaching documents proving the relevant
causes.
(2) Where the request under paragraph (1) is admitted to be reasonable, the
Commissioner of the Korean Intellectual Property Office may alter the matters
clarified on the written adjudication. In such cases, he/she shall hear opinions of the
interested persons.
(3) Article 111 shall apply mutatis mutandis to cases under paragraph (2).
[This Article Newly Inserted by Act No. 7554, May 31, 2005]
Article 112 (Deposit of Consideration)
A party who is obligated to pay consideration under Article 110 (2) 2 shall make a
deposit thereof under the following circumstances:
1. Where the party entitled to receive the consideration refuses or is unable to
receive it;
2. Where an action under Article 190 (1) has been brought with respect to the
consideration;
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3. Where the patent right or exclusive license is the subject of a pledge: Provided,
That the same shall not apply where the pledgee has consented.
Article 113 (Lapse of Adjudication)
Where a person who was granted adjudication fails to pay or deposit the
consideration (or the first installment thereof, if payment is to be made periodically
or by installments) under Article 110 (2) 2 by payment deadline, the adjudication
shall lose its effect.
Article 114 (Cancellation of Adjudication) (1) Where a person who was granted
adjudication falls under any of the following subparagraphs, the Commissioner of the
Korean Intellectual Property Office may cancel the adjudication, ex officio or upon
request by any interested party: Provided, That in cases of subparagraph 2, such
action shall protect the non-exclusive license's lawful interests: <Amended by Act
No. 5080, Dec. 29, 1995; Act No. 7554, May 31, 2005>
1. Where the working of the patented invention is not within the purpose of the
adjudication;
2. Where the grounds for adjudication on the authorization of non-exclusive license
disappears and it is deemed that such grounds will not reoccur;
3. Where matters under Article 110 (2) 3 or 4 which are specified on the written
adjudication are violated without justifiable grounds.
(2) The provisions of Articles 108, 109, 110 (1) and 111 (1) shall apply mutatis
mutandis to cases under paragraph (1).
(3) A non-exclusive license shall be extinguished upon cancellation of the ruling
under paragraph (1).
Article 115 (Restriction on Reason for Objections to Adjudication)
Where a request for an administrative trial has been filed under the Administrative
Appeals Act or a revocation action has been brought under the Administration
Litigation Act as to the adjudication, the consideration determined in the adjudication
shall not be a basis for objection.<Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar.
3, 2006>
Article 116 Deleted.<by Act No. 11117, Dec. 2, 2011>
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Article 117 Deleted.<by Act No. 6411, Feb. 3, 2001>
Article 118 (Effects of Registration of Non-exclusive License) (1) When a non-
exclusive license has been registered, it shall also be effective against any person
who subsequently acquires the patent right or an exclusive license.
(2) A non-exclusive license granted under 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) of this Article even if it has
not been registered. <Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar.
3, 2006; Act No. 8197, Jan. 3, 2007; Act No. 8357, Apr. 11, 2007>
(3) The transfer, modification, extinguishment or restriction on disposal of a non-
exclusive license or the establishment, transfer, modification, extinguishment or
restriction on disposal of a pledge relating to a nonexclusive license shall not be
effective against a third party unless it is registered.
Article 119 (Restriction on Abandonment of Patent Right, etc.) (1) No patentee shall
abandon his/her patent right without the consent of the exclusive licensee, pledgee,
or non-exclusive licensee under Articles 100 (4) and 102 (1) of this Act and Article
10 (1) of the Invention Promotion Act. <Amended by Act No. 4594, Dec. 10, 1993;
Act No. 8197, Jan. 3, 2007; Act No. 8357, Apr. 11, 2007>
(2) No exclusive licensee shall abandon his/her exclusive license without the
consent of the pledgee or non-exclusive licensee under Article 100 (4).
(3) No non-exclusive licensee shall abandon his/her non-exclusive license without
the consent of the pledgee.
Article 120 (Effects of Abandonment)
A patent right, or an exclusive or non-exclusive license thereon, shall be
extinguished as of the time of abandonment of the patent right or of the exclusive or
non-exclusive license thereon.
Article 121 (Pledge)
Where a patent right or an exclusive or non-exclusive license is the subject of a
pledge, the pledgee may not work the patented invention except as otherwise agreed
in a contract.
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Article 122 (Non-exclusive License Incidental to Transfer of Patent Right by Exercise of
Pledge Right)
If a patentee works a patented invention prior to the establishment of a pledge on the
patent right, the patentee shall have a non-exclusive license on the patented
invention even if the patent right is transferred by an auction, etc. In such cases, the
patentee shall pay reasonable consideration to the person to whom the patent right is
transferred by an auction, etc.<Amended by Act No. 4594, Dec. 10, 1993>
Article 123 (Subrogation of Pledge)
A pledge may be exercised against compensation under this Act or against
consideration or goods to be received for the working of the patented invention:
Provided, That an attachment order shall be obtained prior to the payment or
delivery of the consideration or goods.
Article 124 (Extinguishment of Patent Right in Absence of Successor)
A patent right shall be extinguished when no successor exists at the time of
succession.
Article 125 (Report on Working of Patent)
The Commissioner of the Korean Intellectual Property Office may require a patentee,
exclusive licensee or non-exclusive licensee to report whether the patented
invention has been worked and the extent of such working, etc.
Article 125-2 (Title of Execution on Amount of Compensation and Consideration)
A final and conclusive ruling by the Commissioner of the Korean Intellectual
Property Office on the amount of the compensation or consideration to be paid under
this Act shall have the same effect as an enforceable title of execution. In such
cases, the enforceable writ, which has the force of execution, shall be given by a
public official of the Korean Intellectual Property Office.
[This Article Newly Inserted by Act No. 6411, Feb. 3, 2001]
CHAPTER VI PROTECTION OF PATENTEES
Article 126 (Right to Seek Injunction, etc. against Infringement) (1) A patentee or
exclusive licensee may demand a person who infringes or is likely to infringe on
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his/her own patent right to discontinue or refrain from such infringement.
(2) A patentee or an exclusive licensee acting under paragraph (1) may demand the
destruction of the articles by which the act of infringement was committed (including
the products obtained by the act of infringement in cases of a process invention for
manufacturing the products), the removal of the facilities used for the act of
infringement, or other measures necessary to prevent the infringement.
Article 127 (Acts Deemed to be Infringement)
Where any person intends to conduct any of the following acts as his/her business,
he/she shall be deemed to infringe on a patent right or an exclusive license:<Amended
by Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001>
1. In cases of the invention of a product, acts of making, assigning, leasing,
importing, or offering for assignment or lease articles used exclusively for
producing such products;
2. In cases of the invention of process, acts of making, assigning, leasing, importing
or offering for assignment or lease articles used exclusively for working such
process.
Article 128 (Presumption, etc. of Amount of Losses) (1) Where a patentee or
exclusive licensee claims compensation from a person who has intentionally or
negligently infringed his/her patent right or exclusive license for losses caused by
the infringer's transfer of in fringing articles, the amount of losses may be calculated
by multiplying the number of transferred articles by the profit per unit of the articles
that the patentee or exclusive licensee might have sold in the absence of said
infringement. In such cases, the compensation may not exceed an amount calculated
by multiplying the estimated profit per unit by the amount obtained by subtracting
the number of articles actually sold from the number of products that the patentee or
exclusive licensee could have produced: Provided, That where the patentee or
exclusive licensee was unable to sell his/her product for reasons, other than
infringement, a sum calculated according to the number of articles subject to the said
circumstances shall be deducted. <Newly Inserted by Act No. 6411, Feb. 3, 2001>
(2) Where a patentee or exclusive licensee claims compensation for losses from a
person who has intentionally or negligently infringed a patent right or exclusive
license, the profits gained by the infringer as a result of the infringement shall be
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presumed to be the amount of damage suffered by the patentee or exclusive
licensee.
(3) Where a patentee or exclusive licensee claims compensation for losses from a
person who has intentionally or negligently infringed a patent right or exclusive
license, the pecuniary amount which he/she would normally be entitled to receive for
working of the patented invention may be claimed as the amount of losses suffered
by the patentee or exclusive licensee.
(4) Notwithstanding paragraph (3), where the amount of losses exceeds the amount
referred to in paragraph (3), the amount in excess may also be claimed as
compensation for losses. In such cases, the court may take into consideration the
fact that there has been neither willfulness nor gross negligence on the part of the
person who has infringed the patent right or the exclusive license when awarding
losses. <Amended by Act No. 6411, Feb. 3, 2001>
(5) In litigation relating to a patent right or exclusive license, where the court
recognizes that the nature of the facts of the case makes it difficult to provide
evidence proving the amount of losses that have occurred, the court may determine a
reasonable amount on the basis of an examination of the evidence and on a review of
all the arguments, notwithstanding paragraphs (1) through (4). <Newly Inserted by
Act No. 6411, Feb. 3, 2001>
Article 129 (Presumption of Process for Manufacturing)
Where a patent has been granted to an invention of a process for manufacturing a
product, any product identical to the said product shall be presumed to have been
manufactured by the patented process of the latter: Provided, That the foregoing
shall not apply where the relevant product falls under either of the following
subparagraphs:<Amended by Act No. 11654, Mar. 22, 2013>
1. A product publicly known or worked in the Republic of Korea prior to the filing of
the patent application;
2. A product that has been carried in a publication distributed in the Republic of
Korea or in a foreign country prior to the filing of the patent application or a
product that has been made utilizable by the public through telecommunication
lines.
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[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
Article 130 (Presumption of Negligence)
A person who has infringed a patent right or exclusive license of another person
shall be presumed to have been negligent regarding such act of infringement.
Article 131 (Recovery of Reputation of Patentee, etc.)
Upon request of a patentee or exclusive licensee, the court may order the person
who has injured the business reputation of the patentee or exclusive licensee by
intentionally or negligently infringing the patent right or exclusive license to take
necessary measures to restore the business reputation of the said patentee or
exclusive licensee, in lieu of compensation for losses or in addition thereto.
Article 132 (Submission of Documents)
In litigation relating to the infringement of a patent right or exclusive license, the
court may, upon request of a party, order the other party to submit documents
necessary for the assessment of losses caused by the infringement: Provided, That
this shall not apply when the person possessing the documents has a justifiable
ground for refusing to submit them.
CHAPTER VII TRIAL
Article 132-2 (Intellectual Property Tribunal) (1) The Intellectual Property Tribunal
shall be established under the jurisdiction of the Commissioner of the Korean
Intellectual Property Office to be responsible for trials and retrials regarding patents,
utility models, designs and trademarks and investigation and research thereof.
<Amended by Act No. 7289, Dec. 31, 2004>
(2) The Intellectual Property Tribunal shall be comprised of the President and
administrative patent judges.
(3) Matters necessary for the organization, personnel and operation of the
Intellectual Property Tribunal shall be determined by Presidential Decree.
[This Article Newly Inserted by Act No. 4892, Jan. 5, 1995]
Article 132-3 (Trial against Decision to Reject Patent Application, etc.)
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Where a person who has received a decision to reject a patent application or a
decision to reject an application to register extension of the term of a patent right
has an objection to such decision, such person may request a trial within thirty days
from the date of receipt of the certified copy of the decision.<Amended by Act No. 7871,
Mar. 3, 2006; Act No. 11117, Dec. 2, 2011>
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
Article 132-4 Deleted.<by Act No. 6411, Feb. 3, 2001>
Article 133 (Invalidation Trial of Patent) (1) In any of the following cases, an
interested party or an examiner may request a trial to invalidate a patent. In such
cases, that patent contains two or more claims, a request for the invalidation trial
may be made for each claim: Provided, That if three months have not passed since
the date of registration publication of the patent right after registration of its
establishment, any person may make a request for the invalidation trial on the
grounds that the patent falls under any of the following subparagraphs (excluding
subparagraph 2): <Amended by Act No. 7871, Mar. 3, 2006; Act No. 10716, May 24,
2011>
1. Where a person has violated Articles 25, 29, 32, 36 (1) through (3), or 42 (3) 1
or (4);
2. Where the patent has been granted to a person not entitled to obtain the patent
under the main sentence of Article 33 (1), or in violation of Article 44;
3. Where a person is unable to obtain the patent under the proviso to Article 33 (1);
4. After the grant of the patent, where the patentee is no longer capable of enjoying
the patent right under Article 25, or the patent comes to be contrary to a treaty;
5. Where a person is unable to obtain the patent for violating a treaty;
6. Where the application is amended beyond the scope under Article 47 (2);
7. Where the application is a divisional application filed beyond the scope under
Article 52 (1);
8. Where the application is a converted application beyond the scope under Article
53 (1).
(2) A trial under paragraph (1) may be requested even after the extinguishment of a
patent right.
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(3) Where a trial decision invalidating a patent has become final and conclusive, the
patent right shall be deemed never to have existed: Provided, That where a patent
falls under paragraph (1) 4 and a trial decision invalidating the patent has become
final and conclusive, the patent right shall be deemed not to have existed at the time
when the patent first became subject to the said subparagraph.
(4) Where a trial under paragraph (1) has been requested, the presiding
administrative patent judge shall notify the exclusive licensee of the patent right and
any other person having registered rights relating to such patent of the purport of
such request.
Article 133-2 (Correction of Patent during Invalidation Trial of Patent) (1) A defendant
of a trial under Article 133 (1) may request corrections to the specification or
drawings of a patented invention only in cases falling under any subparagraph of
Article 136 (1) within the term designated pursuant to Article 147 (1) or the latter
part of Article 159 (1). In such cases, if the presiding administrative patent judge
finds it necessary to allow request of corrections due to submission of evidential
documents by an applicant after the designated period prescribed by Article 147 (1),
he/she may designate another period and allow request of corrections within the
period. <Amended by Act No. 8197, Jan. 3, 2007; Act No. 9381, Jan. 30, 2009>
(2) In cases of a request of corrections pursuant to paragraph (1), a request of
corrections carried out before the request of corrections during the procedures of
relevant invalidation trials shall be deemed withdrawn. <Newly Inserted by Act No.
8197, Jan. 3, 2007>
(3) When the corrections have been requested under paragraph (1), the presiding
administrative patent judge shall serve a copy of the written request on the
defendant under Article 133 (1).
(4) Articles 136 (2) through (5), (7) through (11), 139 (3) and 140 (1), (2) and (5)
shall apply mutatis mutandis to requests for correction under paragraph (1). In such
cases, "before issuance of a notification of closure of the trial examination under
Article 162 (3) (where the trial examination is reopened under Article 162 (4),
before a subsequent notification of the closure of the trial examination is issued
under Article 162 (3))" in Article 136 (9) shall be construed as "within the
designated term where it would be noticed under Article 136 (5)."
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(5) With respect to the application of paragraph (4), Article 136 (4) shall not apply
mutatis mutandis in correcting a claim against which a patent invalidation trial is
requested under Article 133 (1). <Newly Inserted by Act No. 7871, Mar. 3, 2006;
Act No. 8197, Jan. 3, 2007>
[This Article Newly Inserted by Act No. 6411, Feb. 3, 2001]
Article 134 (Invalidation Trial of Registration for Extension of Term of Patent Right) (1)
In any of the following cases, any interested party or examiner may request a trial to
invalidate the registration of an extension of the term of a patent right pursuant to
Article 92: <Amended by Act No. 5329, Apr. 10, 1997; Act No. 11117, Dec. 2,
2011>
1. Where an extension had been registered with respect to the application that did
not require any permission, etc. under Article 89 for purposes of working the
patented invention;
2. Where an extension had been registered with respect to the application,
permission, etc. under Article 89 of which was not obtained by the patentee or an
exclusive licensee thereof or a registered nonexclusive licensee;
3. Where the term extended by the registration of an extension exceeds the period
during which the patented invention could not be worked;
4. Where the registration of an extension has been effected on an application made
by a person, other than the patentee;
5. Where the registration of an extension has been effected on an application made
in violation of Article 90 (3);
6. Deleted.<by Act No. 5576, Sep. 23, 1998>
(2) When registering extension of the term of a patent right pursuant to Article 92-
5 falls under any of the following subparagraphs, any interested party or examiner
may request a trial to invalidate such registration: <Newly Inserted by Act No.
11117, Dec. 2, 2011>
1. When the period extended following the registration of extension exceeds the
period of extension recognized pursuant to Article 92-2;
2. When the registration of extension is made, with regard to an application filed by
any person, other than the relevant patentee;
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3. When the registration of extension is made, with regard to an application which
violates Article 92-3 (3).
(3) The provisions of Article 133 (2) and (4) shall apply mutatis mutandis to
requests for a trial under paragraphs (1) and (2). <Amended by Act No. 11117, Dec.
2, 2011>
(4) Where a trial decision that the registration of extension is to be invalidated has
become final and conclusive, the registration of extension of the term shall be
deemed never existed: Provided, That where the registration of extension falls under
any of the following subparagraphs, extension shall be deemed not existed for the
relevant period:<Amended by Act No. 6411, Feb. 3, 2001; Act No. 11117, Dec. 2,
2011>
1. In cases where the registration of extension falls under paragraph (1) 3 and thus
becomes invalidated, the period extended in excess of a period during which the
relevant patented invention could not be implemented;
2. In cases where the registration of extension falls under paragraph (2) 1 and thus
becomes invalidated, the period extended in excess of a period for extension
recognized pursuant to Article 92-2.
Article 135 (Trial to Confirm Scope of Patent Right) (1) A patentee, an exclusive
licensee or an interested person may request a trial to confirm the scope of a patent
right. <Amended by Act No. 7871, Mar. 3, 2006>
(2) Where a trial is requested to confirm the scope of a patent right under paragraph
(1), the confirmation may apply to each claim if the patent contains two or more
claims.
Article 136 (Trial for Correction) (1) A patentee may request a trial to correct the
specification or drawings in any of the following cases: Provided, That this shall not
apply where an invalidation trial against the patent is pending before the Intellectual
Property Tribunal: <Amended by Act No. 7871, Mar. 3, 2006; Act No. 9381, Jan. 30,
2009>
1. Where the scope of claims is reduced;
2. Where a clerical error is corrected;
3. Where an ambiguous statement is made to a clear statement.
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(2) Correction of the specification or drawings under paragraph (1) shall be limited
to the scope of the subject matter disclosed in the specification or drawings of the
patented invention: Provided, That where a clerical error is corrected pursuant to
paragraph (1) 2, it shall be limited to the scope of the subject matter of the
specification or drawings initially attached to the application. <Amended by Act No.
9381, Jan. 30, 2009>
(3) For purposes of correction of the specification or drawings under paragraph (1),
the claim shall neither be extended nor modified.
(4) A correction which is made in accordance with paragraph (1) and falls under
paragraph (1) 1 and 2 shall be patentable at the time of filing of the patent
application with regard to the matters which are described in the scope of claims
after the correction. <Amended by Act No. 9381, Jan. 30, 2009>
(5) Where a request for a trial for correction under paragraph (1) is deemed not to
comply with any subparagraph of paragraph (1), to exceed the scope of paragraph
(2), or to be in violation of paragraph (3) or (4), the administrative patent judge shall
notify the petitioner of the reasons therefor and provide him/her an opportunity to
submit his/her written opinion within a designated period. <Amended by Act No.
9381, Jan. 30, 2009>
(6) A trial for correction under paragraph (1) may be requested even after the
patent right has been extinguished: Provided, That this shall not apply where the
patent has been invalidated by a trial decision. <Amended by Act No. 7871, Mar. 3,
2006>
(7) No patentee shall request a trial for correction under paragraph (1) without the
consent of an exclusive licensee, a pledgee or a non-exclusive licensee under
Articles 100 (4) and 102 (1) of this Act and Article 10 (1) of the Invention
Promotion Act. <Amended by Act No. 8197, Jan. 3, 2007; Act No. 8357, Apr. 11,
2007>
(8) Where a trial decision allowing the specification or drawings of a patented
invention to be corrected becomes final and conclusive, the patent application,
laying-open of the application, decision to grant the patent or trial decision on patent
and the establishment registration of the patent right shall be deemed to have been
made on the basis of such corrected specification or drawings.
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(9) A petitioner may amend the corrected specification or drawings attached to the
written request prescribed in Article 140 (5) only before issuance of a notification of
closure of trial proceedings under Article 162 (3) (where the trial proceedings are
reopened under Article 162 (4), before a subsequent notification of the closure of
trial proceedings is issued under Article 162 (3)).
(10) Where a decision has been rendered to allow correction of the specification or
drawings of the patented invention, the President of the Intellectual Property
Tribunal shall notify the Commissioner of the Korean Intellectual Property Office of
the corrected subject matter.
(11) In cases where a notification is issued under paragraph (10), the Commissioner
of the Korean Intellectual Property Office shall publish it in the Patent Gazette.
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
Article 137 (Trial for Invalidation of Correction) (1) An interested party or an examiner
may request a trial for an invalidation of a correction, where the correction of the
specification or drawings of a patented invention under Article 133-2 (1) or 136 (1)
has been made in violation of any of the following: <Amended by Act No. 6411, Feb.
3, 2001; Act No. 7871, Mar. 3, 2006; Act No. 8197, Jan. 3, 2007; Act No. 9381, Jan.
30, 2009>
1. Any subparagraph of Article 136 (1);
2. Article 136 (2) through (4) (including cases where the said provisions shall apply
mutatis mutandis under Article 133-2 (4)).
(2) Article 133 (2) and (4) shall apply mutatis mutandis to requests for trial under
paragraph (1).
(3) A defendant in an invalidation trial under paragraph (1) may request corrections
of the specification or drawings of a patented invention only in a case falling under
any subparagraph of Article 136 (1) within the term designated under Article 147
(1) or the latter part of Article 159 (1). <Newly Inserted by Act No. 6411, Feb. 3,
2001; Act No. 9381, Jan. 30, 2009>
(4) Article 133-2 (3) and (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)." <Newly Inserted by Act No. 6411, Feb.
3, 2001; Act No. 8197, Jan. 3, 2007>
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(5) Where a trial decision to invalidate a correction under paragraph (1) has become
final and conclusive, the correction shall be deemed never to have been made.
Article 138 (Trial for Granting Non-exclusive License) (1) If a patentee, or exclusive
or non-exclusive licensee, intends to obtain permission to exercise the right
provided for in Article 98, and if the other party concerned refuses to grant the
permission without justifiable grounds or it is not possible to obtain such permission,
the said patentee or exclusive or non-exclusive licensee may request a trial for the
grant of a non-exclusive license having the scope necessary to work the patented
invention.
(2) Where a request under paragraph (1) has been made, a non-exclusive license
shall be granted only where the patented invention of the later application constitutes
any important technical advance having substantial economical value in comparison
with the other party's patented invention or registered utility model for which an
application was filed prior to the filing date of the later application. <Amended by Act
No. 6411, Feb. 3, 2001>
(3) If a person who has granted a non-exclusive license under paragraph (1) needs
to work the patented invention of the person who has been granted such non-
exclusive license, and if the latter refuses to grant permission or if it is impossible to
obtain such permission, the former may request a trial for the grant of a non-
exclusive license within the scope of the patented invention which he/she intends to
work by obtaining such license.
(4) A non-exclusive licensee under paragraphs (1) and (3) shall pay consideration
to the patentee, owner of the utility model right, owner of the design right, or
exclusive licensee thereof: Provided, That if the non-exclusive licensee is unable to
make payment for reasons beyond his/her control, the consideration shall be
deposited. <Amended by Act No. 7289, Dec. 31, 2004>
(5) No non-exclusive licensee under paragraph (4) shall work the patented
invention, registered utility model or registered design, or similar design without
payment of consideration or deposit thereof. <Amended by Act No. 4594, Dec. 10,
1993; Act No. 7289, Dec. 31, 2004>
Article 139 (Request, etc. for Joint Trial) (1) Where two or more persons request an
invalidation trial under Articles 133 (1), 134 (1) and (2) and 137 (1) or a trial to
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confirm the scope of a patent right under Article 135 (1), the request may be made
jointly.<Amended by Act No. 11117, Dec. 2, 2011>
(2) Where a trial is requested against any of the joint owners of a patent right, all
the joint owners shall be made defendants.
(3) Where joint owners of a patent right or of a right to obtain a patent request a
trial concerning the right under joint ownership, the request shall be made jointly by
all of the owners.
(4) Where there are grounds for the suspension of trial proceedings which apply to
one of the requesters under paragraph (1) or (3) or one of the defendants under
paragraph (2), the suspension shall be effective against all of them.
Article 140 (Formal Requirements of Request for Trial) (1) A person who intends to
request a trial shall submit a written request stating the following matters to the
President of the Intellectual Property Tribunal: <Amended by Act No. 4892, Jan. 5,
1995; Act No. 6411, Feb. 3, 2001>
1. Name and domicile of a person (if the person is a juristic person, its title and the
location of its place of business);
1-2. The name and domicile, or location of place of business, of the representative,
if designated (if the representative is a patent corporation, its title, location of
office and designated patent attorney's name);
2. Identification of the trial case;
3. The purport of the request and the grounds therefor.
(2) No amendment to a request for trial submitted under paragraph (1) shall be
made in the intent or purpose thereof: Provided, That this shall not apply when such
amendment falls under any of the following subparagraphs: <Amended by Act No.
8197, Jan. 3, 2007; Act No. 9381, Jan. 30, 2009>
1. Where an amendment (including an addition) is made to correct a statement of a
patentee from among the persons concerned pursuant to paragraph (1) 1;
2. Where a ground for request under paragraph (1) 3 is amended;
3. At a trial requested by a patentee or an exclusive licensee as a petitioner to
confirm the scope of a patent right, the specification or drawings of the invention
subject to confirmation on the written request for a trial is amended by the
petitioner in order to make it identical with the invention which is on the working
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by the defendant, in cases where the defendant insists that the specification or
drawings of the invention subject to confirmation on the written request for a trial
(referring to the defendant's invention claimed by the petitioner) are different from
the invention which is on the working by himself/herself.
(3) When a trial is requested to confirm the scope of a patent right under Article
135 (1), the specification capable to be compared with the patented invention and the
relevant drawings shall be attached to the written request. <Amended by Act No.
6411, Feb. 3, 2001>
(4) A written request for a trial for the grant of a non-exclusive license under
Article 138 (1) shall, in addition to the particulars referred to in paragraph (1), state
the following: <Amended by Act No. 5080, Dec. 29, 1995; Act No. 7289, Dec. 31,
2004>
1. The number and title of his/her patent which is required to be worked;
2. The number, title and date of the other party's patent, registered utility model or
registered design to be worked;
3. The scope, duration and consideration for the non-exclusive license for a
patented invention, registered utility model or registered design.
(5) When a trial for amendment under Article 136 (1) is requested, the amended
specification or drawings shall be attached to the written request for trial. <Amended
by Act No. 6411, Feb. 3, 2001>
Article 140-2 (Formal Requirements of Request for Trial against Decision to Reject
Patent Application) (1) Notwithstanding Article 140 (1), a person who intends to
request a trial against a decision to reject a patent application under Article 132-3
shall, submit a written request stating the following matters to the President of the
Intellectual Property Tribunal: <Amended by Act No. 6411, Feb. 3, 2001; Act No.
7871, Mar. 3, 2006; Act No. 9381, Jan. 30, 2009>
1. The name and domicile of a petitioner (if the petitioner is a juristic person, its
title and the location of its place of business);
1-2. The name and domicile, or location of place of business, of the representative,
if designated (if the representative is a patent corporation, its title, location of
office and designated patent attorney's name);
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2. The filing date and file number of the application;
3. The title of the invention;
4. The date of the decision;
5. The identification of the trial case;
6. The purport of the request and the grounds therefor.
(2) Where a written request for a trial submitted pursuant to paragraph (1) is
amended, the gist thereof shall not be changed: Provided, That this shall not apply
where such amendment falls under any of the following subparagraphs: <Newly
Inserted by Act No. 9381, Jan. 30, 2009>
1. Where an amendment (including an addition) is made to correct a statement of a
petitioner pursuant to paragraph (1) 1;
2. Where a ground for request pursuant to paragraph (1) 6 is amended.
(3) Deleted. <by Act No. 9381, Jan. 30, 2009>
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
Article 141 (Rejection of Request for Trial) (1) The presiding administrative patent
judge shall order an amended submission within a specified period where any of the
following subparagraphs applies: <Amended by Act No. 6411, Feb. 3, 2001>
1. Where a request for trial does not comply with Article 140 (1) and (3) through
(5) or 140-2 (1);
2. Where a procedure relating to a trial falls under any of the following cases:
(a) Where the procedure is not in compliance with Article 3 (1) or 6;
(b) Where fees required in accordance with Article 82 have not been paid;
(c) Where the procedure is not in compliance with the formalities specified in this
Act or any order thereunder.
(2) Where a person who has been ordered to make an amended submission under
paragraph (1) fails to do so within the specified period, the presiding administrative
patent judge shall reject the request for trial by decision. <Amended by Act No.
6411, Feb. 3, 2001>
(3) A decision to reject a request for trial under paragraph (2) shall be in writing
and shall state the grounds therefor.
(4) through (6) Deleted. <by Act No. 4892, Jan. 5, 1995>
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Article 142 (Dismissal of Request for Trial containing Incurable Defects by Trial
Decision)
If a request for a trial contains unlawful defects which cannot be corrected by
amendment, such request may be rejected by a ruling without providing the
defendant an opportunity to submit a written reply.
Article 143 (Administrative Patent Judges) (1) When a trial is requested, the President
of the Intellectual Property Tribunal shall direct administrative patent judges to hear
the case. <Amended by Act No. 4892, Jan. 5, 1995>
(2) The qualifications of administrative patent judges shall be prescribed by
Presidential Decree. <Amended by Act No. 4892, Jan. 5, 1995>
(3) Administrative patent judges shall conduct their official trial duties in an
independent manner. <Amended by Act No. 4892, Jan. 5, 1995>
Article 144 (Designation of Administrative Patent Judges) (1) For each trial, the
President of the Intellectual Property Tribunal shall designate administrative patent
judges constituting a board for trial under Article 146. <Amended by Act No. 4892,
Jan. 5, 1995>
(2) When any administrative patent judge designated in accordance with paragraph
(1) is unable to participate in the trial, the President of the Intellectual Property
Tribunal may allow another administrative patent judge to do so. <Amended by Act
No. 4892, Jan. 5, 1995>
Article 145 (Presiding Administrative Patent Judge) (1) The President of the
Intellectual Property Tribunal shall select one of the administrative patent judges
designated under Article 144 (1) as the presiding administrative patent judge.
<Amended by Act No. 4892, Jan. 5, 1995>
(2) The presiding administrative patent judge shall preside over all matters relating
to the trial.
Article 146 (Board for Trial) (1) A trial shall be conducted by a board of three or five
administrative patent judges. <Amended by Act No. 4892, Jan. 5, 1995>
(2) The board referred to in paragraph (1) shall make its decisions by a majority
vote.
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(3) The consultations of the administrative patent judges shall not be open to the
public.
Article 147 (Submission of Written Response, etc.) (1) When a trial has been
requested, the presiding administrative patent judge shall serve a copy of the written
request on the defendant and shall provide him/her an opportunity to submit a written
response within a designated deadline.
(2) Upon receipt of a written response under paragraph (1), the presiding
administrative patent judge shall serve a copy of the response on the petitioner.
(3) The presiding administrative patent judge may directly examine the parties in
relation to the trial.
Article 148 (Exclusion of Administrative Patent Judges)
In any of the following cases, an administrative patent judge shall be precluded from
exercising his/her functions in a trial:<Amended by Act No. 6411, Feb. 3, 2001; Act No. 7427,
Mar. 31, 2005; Act No. 7871, Mar. 3, 2006>
1. Where the administrative patent judge or his/her spouse or ex-spouse is a party
or intervenor;
2. Where the administrative patent judge is or was a relative of a party or
intervenor;
3. Where the administrative patent judge is or was a legal representative of a party
or intervenor;
4. Where the administrative patent judge has become a witness or expert witness or
was an expert witness;
5. Where the administrative patent judge is or was a representative of a party or
intervenor;
6. Where the administrative patent judge has participated as an examiner or
administrative patent judge in a decision to grant a patent or a trial decision relating
to the case;
7. Where the administrative patent judge has a direct interest.
Article 149 (Request for Exclusion)
Where grounds for preclusion under Article 148 exist, a party or intervenor may
request the exclusion of an administrative patent judge.
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Article 150 (Challenge of Administrative Patent Judges) (1) Where there are
circumstances wherein the participation of an administrative patent judge would
compromise the fairness of the proceedings in a trial, such administrative patent
judge may be challenged by a party or intervenor.
(2) After a party or intervenor has made a written or oral statement with regard to
the case before a administrative patent judge, he/she may not challenge the
administrative patent judge: Provided, That the same shall not apply where the party
or intervenor did not know that there was a ground for challenge or where a ground
for challenge arose subsequently.
Article 151 (Indication of Grounds for Exclusion or Challenge) (1) A person who
presents a motion for exclusion or challenge under Articles 149 and 150 shall submit
a document stating the grounds therefor to the President of the Intellectual Property
Tribunal: Provided, That in an oral trial examination, an oral challenge may be made.
<Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411, Feb. 3, 2001>
(2) The underlying causes for exclusion or challenge shall be substantiated within
three days from the date the motion was presented.
Article 152 (Decision on Petition for Exclusion or Challenge) (1) A decision on a
petition for exclusion or challenge shall be made by a trial.
(2) No administrative patent judge subject to the exclusion or challenge motion shall
participate in the trial of the request: Provided, That he/she may state his/her
opinion.
(3) A decision made under paragraph (1) shall be in writing and shall state the
grounds therefor.
(4) No appeal shall be made against a decision made under paragraph (1).
Article 153 (Suspension of Proceedings)
When a motion for exclusion or challenge has been presented, the trial proceedings
shall be suspended until a decision thereon has been made: Provided, That this shall
not apply to the matters requiring urgent attention.
Article 153-2 (Avoidance of Administrative Patent Judges)
Where Article 148 or 150 applies to an administrative patent judge, he/she may
avoid trial proceedings relating to the case with permission from the President of the
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Intellectual Property Tribunal.
[This Article Newly Inserted by Act No. 6411, Feb. 3, 2001]
Article 154 (Trial Proceedings, etc.) (1) Trial proceedings shall be conducted by oral
hearing or documentary examination: Provided, That where a party requests an oral
hearing, trial proceedings shall be conducted by oral hearing except where it is
recognized that a decision can be made on the basis of a documentary examination
alone. <Amended by Act No. 6411, Feb. 3, 2001>
(2) Deleted. <by Act No. 6411, Feb. 3, 2001>
(3) Oral hearings shall be conducted in public: Provided, That this shall not apply
where public order or morality is likely to be injured thereby. <Amended by Act No.
6411, Feb. 3, 2001>
(4) Where trial proceedings are conducted by oral hearings in accordance with
paragraph (1), the presiding trial examiner shall designate the date and place thereof
and serve a document containing such information on the parties and intervenors:
Provided, That this shall not apply where the parties or intervenors to attend the
case have already been notified. <Amended by Act No. 6411, Feb. 3, 2001>
(5) With respect to the trial proceedings by oral hearings under paragraph (1), an
official designated by the President of the Intellectual Property Tribunal shall, under
the direction of the presiding administrative patent judge, prepare a protocol setting
forth the gist of the proceedings and other necessary matters for the date of each
trial proceeding. <Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411, Feb. 3,
2001>
(6) The presiding administrative patent judge and the official who has prepared the
protocol under paragraph (5) shall sign the protocol and affix their seals thereto.
(7) Articles 153, 154, and 156 through 160 of the Civil Procedure Act shall apply
mutatis mutandis to protocols under paragraph (5). <Amended by Act No. 6626, Jan.
26, 2002; Act No. 7871, Mar. 3, 2006>
(8) Articles 143, 259, 299 and 367 of the Civil Procedure Act shall apply mutatis
mutandis to trials. <Amended by Act No. 6626, Jan. 26, 2002; Act No. 7871, Mar. 3,
2006>
Article 155 (Intervention) (1) Any person having the right to request a trial under
Article 139 (1) may intervene in the trial before the conclusion of the trial
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examination.
(2) An intervenor under paragraph (1) may continue a trial even after the request
for the trial has been withdrawn by the original party.
(3) Any person having an interest in the result of a trial may intervene in the trial
before the conclusion of the trial examination in order to assist one of the parties.
(4) An intervenor under paragraph (3) may initiate and take part in any procedure
relating to the trial.
(5) Where there are grounds for suspension of a trial proceeding applicable to the
intervenor under paragraph (1) or (3), the suspension shall also be effective against
the original party.
Article 156 (Request for Intervention and Ruling thereon) (1) A person intending to
intervene in a trial shall submit a request for intervention to the presiding
administrative patent judge.
(2) The presiding administrative patent judge shall serve copies of the request for
intervention on the parties and other intervenors and provide them an opportunity to
submit written opinions within a designated deadline.
(3) Where a request for intervention is made, the ruling thereon shall be made by a
trial.
(4) The ruling under paragraph (3) shall be in writing and shall state the grounds
therefor.
(5) No appeal shall be made against the ruling under paragraph (3).
Article 157 (Taking and Preserving Evidence) (1) With respect to a trial, evidence may
be taken or preserved upon request of a party, intervenor or interested person, or ex
officio.
(2) The provisions of the Civil Procedure Act relating to taking and preserving
evidence shall apply mutatis mutandis to taking and preserving evidence under
paragraph (1): Provided, That the administrative patent judge may not impose a fine
for negligence, order compulsory appearance, or require the deposit of money as a
security. <Amended by Act No. 4892, Jan. 5, 1995; Act No. 7871, Mar. 3, 2006>
(3) A request to preserve evidence shall be made to the President of the Intellectual
Property Tribunal prior to a request for trial and to the presiding administrative
patent judge of the case while the trial is pending. <Amended by Act No. 4892, Jan.
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5, 1995>
(4) Where a motion for preservation of evidence has been made under paragraph
(1) prior to a request for trial, the President of the Intellectual Property Tribunal
shall designate an administrative patent judge to be responsible for the preservation
of evidence. <Amended by Act No. 4892, Jan. 5, 1995>
(5) Where evidence has been taken or preserved ex officio under paragraph (1), the
presiding administrative patent judge shall serve the result thereof on the parties,
intervenors, and interested persons and shall provide them an opportunity to submit
written opinions within a designated deadline.
Article 158 (Continuation of Trial Proceedings)
Notwithstanding the failure of a party or intervenor to take any proceedings within a
statutory period or designated deadline, or failure to appear on the designated date in
accordance with Article 154 (4), the presiding administrative patent judge may
proceed with the trial proceedings.
Article 159 (Ex Officio Trial Examination) (1) Grounds which have not been pleaded by
a party or intervenor in a trial may be examined. In such cases, the parties and
intervenors shall be provided an opportunity to state their opinions regarding such
grounds, within a designated deadline. <Amended by Act No. 6411, Feb. 3, 2001>
(2) In a trial, no examination may be made on the purpose of a claim not requested
by the petitioner. <Newly Inserted by Act No. 4594, Dec. 10, 1993>
Article 160 (Joint or Separate Conduct of Trial Proceedings or Trial Decisions)
An administrative patent judge may jointly or separately conduct trial proceedings or
trial decisions with regard to two or more trial proceedings where one or both
parties thereto are the same.
Article 161 (Withdrawal of Request for Trial) (1) A request for trial may be withdrawn
by a petitioner before the trial decision has become final and conclusive: Provided,
That the consent of the defendant for the withdrawal shall be obtained where a
response has already been submitted.
(2) When a request for a trial for invalidating a patent under Article 133 (1) or for
confirming the scope of a patent right under Article 135 has been made with regard
to two or more claims, the request may be withdrawn for each of the claims.
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(3) Where a request for a trial or a request for each of the claims is withdrawn in
accordance with paragraph (1) or (2), the request shall be deemed never to have
been made. <Amended by Act No. 6411, Feb. 3, 2001>
Article 162 (Trial Decisions) (1) Except as otherwise provided for, a trial shall be
closed when a trial decision has been made.
(2) The trial decision under paragraph (1) shall be in writing, signed and sealed by
the administrative patent judges who have rendered it, and shall state the following:
<Amended by Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001>
1. The number of the trial;
2. The name and domicile of the parties and intervenors (if a juristic person, its title
and the place of business);
2-2. The name and domicile or place of business of the representative, if any (if the
representative is a patent corporation, its title, location of office and designated
patent attorney's name);
3. The identification of the trial case;
4. The text of the ruling (including the scope, duration and consideration of a non-
exclusive license in trial cases under Article 138);
5. The grounds for the decision (including the purport and a summary of the grounds
for the request);
6. The date of the ruling.
(3) When a case has been thoroughly examined and is ready to be ruled, the
presiding administrative patent judge shall notify the parties and intervenors thereof.
(4) Even after notification of the closure of the trial examination under paragraph
(3), the presiding administrative patent judge may, if necessary, reopen the
examination upon the motion of a party or an intervenor or ex officio.
(5) The decision shall be rendered within twenty days following the date on which
the closure of a trial examination is notified under paragraph (3). <Amended by Act
No. 4594, Dec. 10, 1993>
(6) When a trial decision or a ruling has been rendered, the presiding administrative
patent judge shall serve a certified copy of the trial decision or the ruling on the
parties, intervenors, and persons who have requested intervention to the trial, but
have been rejected. <Amended by Act No. 4892, Jan. 5, 1995>
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Article 163 (Res Judicata)
When a trial decision has become final and conclusive pursuant to this Act, with
regard to the case, no person may demand the trial again on the basis of the same
facts and evidence: Provided, That this shall not apply where the final and conclusive
trial decision is a decision of rejection.<Amended by Act No. 6411, Feb. 3, 2001>
Article 164 (Relations to Litigation) (1) Procedures of a trial may, if necessary, be
suspended until the trial decision of another trial relevant to the trial becomes final
and conclusive or litigation procedures thereon are concluded. <Amended by Act No.
5329, Apr. 10, 1997; Act No. 7871, Mar. 3, 2006>
(2) The court may, if deemed necessary for litigation procedures, suspend the
litigation procedures until a trial decision on the patent becomes final and conclusive.
(3) Where a legal action against an infringement on a patent right or exclusive
license is instituted, the relevant court shall notify the President of the Intellectual
Property Tribunal of its purport. This shall also apply where the litigation procedures
have been terminated. <Newly Inserted by Act No. 6411, Feb. 3, 2001>
(4) Where a trial for invalidating a patent, etc. is requested in response to a legal
action against an infringement on a patent right or exclusive license under paragraph
(3), the President of the Intellectual Property Tribunal shall notify the relevant court
under paragraph (3) of its purport. This shall also apply where a decision of
rejection, a request for trial, or a withdrawal of a request has occurred. <Newly
Inserted by Act No. 6411, Feb. 3, 2001>
Article 165 (Costs of Trial) (1) The imposition of costs in connection with a trial under
Articles 133 (1), 134 (1) and (2), 135 and 137 (1) shall be decided by a trial
decision in the event the trial is terminated by a trial decision, or by a decision in the
trial where the trial is terminated in a manner, other than by a trial decision.
<Amended by Act No. 11117, Dec. 2, 2011>
(2) Articles 98 through 103, 107 (1) and (2), 108, 111, 112, and 116 of the Civil
Procedure Act shall apply mutatis mutandis to the costs in connection with the trial
under paragraph (1). <Amended by Act No. 6626, Jan. 26, 2002; Act No. 7871, Mar.
3, 2006>
(3) The costs in connection with the trial under Article 132-3, 136 or 138 shall be
borne by a petitioner. <Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411, Feb.
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3, 2001; Act No. 7871, Mar. 3, 2006>
(4) Article 102 of the Civil Procedure Act shall apply mutatis mutandis to the costs
borne by the petitioner under paragraph (3). <Amended by Act No. 4892, Jan. 5,
1995; Act No. 6626, Jan. 26, 2002; Act No. 7871, Mar. 3, 2006>
(5) The President of the Intellectual Property Tribunal shall decide the costs of a
trial upon request by an interested party, after the trial decision or the ruling has
become final and conclusive. <Amended by Act No. 4892, Jan. 5, 1995; Act No.
6411, Feb. 3, 2001>
(6) The extent, amount, and payment of the costs of a trial, as well as the payment
of the costs for performing any procedural acts in the trial, shall be governed by the
relevant provisions of the Costs of Civil Procedure Act unless they are incompatible.
<Amended by Act No. 7871, Mar. 3, 2006>
(7) The fees which a party has paid or will pay to a patent attorney who represents
the party in the trial shall be deemed an element of the costs in connection with a
trial to determine the extent of the costs by the Commissioner of the Korean
Intellectual Property Office. In such cases, even if two or more patent attorneys have
represented a person for the trial, it shall be deemed represented by one patent
attorney.
Article 166 (Title of Enforcement of Trial Costs or Consideration)
A final and conclusive ruling on the costs of a trial decided by the President of the
Intellectual Property Tribunal or on the consideration decided by an administrative
patent judge, to be paid under this Act, shall have the same effect as an enforceable
title of liability. In such cases, the enforceable writ, which has the force of execution,
shall be given by an official of the Intellectual Property Tribunal.
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
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 (Mutatis Mutandis Application of Provisions on Examination to Trial against
Decision to Reject Patent Application) (1) Article 47 (1) 1 and 2, Articles 51, 63
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and 66 shall apply mutatis mutandis to a trial against a decision to reject a patent
application. In such cases, "Article 47 (1) 2 and 3" in the main sentence of Article 51
(1) shall be construed as "Article 47 (1) 2", and "amendment" in the main sentence
of Article 51 (1) shall be construed as "amendment (excluding such amendments
made before a request for a trial against a decision to reject a patent application
referred to in Article 132-3)." <Amended by Act No. 9381, Jan. 30, 2009>
(2) Article 63, which applies mutatis mutandis under paragraph (1), shall apply
where grounds for rejection have been found that are different from those in the
examiner's original decision to reject a patent application. <Amended by Act No.
6411, Feb. 3, 2001>
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
Article 171 (Special Provisions of Trial against Decision to Reject Patent Application)
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 reject to register an extension of
the term of a patent right.
[This Article Wholly Amended by Act No. 9381, Jan. 30, 2009]
Article 172 (Effect of Examination Proceedings)
Patent-related procedures previously taken during the course of an examination
shall also remain effective in a trial against a decision to reject a patent application or
against a decision to reject to register an extension of the term of a patent right.
[This Article Wholly Amended by Act No. 7871, Mar. 3, 2006]
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 (Cancellation of Decision to Reject Patent Application, etc.) (1) Where an
administrative patent judge deems that the request for a trial under Articles 132-3
is well-grounded, he/she shall make a trial decision to cancel the decision to reject a
patent application or to reject the registration of an extension of term of a patent
right. <Amended by Act No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act
No. 7871, Mar. 3, 2006>
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(2) When any decision to reject a patent or to reject the registration of extension of
term of a patent right is revoked pursuant to paragraph (1) in a trial, a trial decision
may be made to remand the case for examination proceedings. <Amended by Act
No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006;
Act No. 11117, Dec. 2, 2011>
(3) In ruling on a trial under paragraphs (1) and (2), the reasons constituting the
basis for the reversal shall bind the examiner with respect to the case.
[This Article Wholly Amended by Act No. 4892, Jan. 5, 1995]
Article 177 Deleted.<by Act No. 4892, Jan. 5, 1995>
CHAPTER VIII RETRIAL
Article 178 (Request for Retrial) (1) Any party may request a retrial against a trial
decision which has become final and conclusive.
(2) Articles 451 and 453 of the Civil Procedure Act shall apply mutatis mutandis to
requests for retrial under paragraph (1). <Amended by Act No. 6626, Jan. 26, 2002;
Act No. 7871, Mar. 3, 2006>
Article 179 (Request for Retrial on Trial Decision on Fraudulent Acts) (1) Where the
parties in a trial acted in collusion for the purpose of causing a trial decision to be
rendered which damages the rights or interests of a third party, the third party may
request a retrial against the final and conclusive trial decision. <Amended by Act No.
4892, Jan. 5, 1995>
(2) In cases of a request for a retrial under paragraph (1), the parties of the trial
shall be joint defendants. <Amended by Act No. 4892, Jan. 5, 1995>
Article 180 (Period for Requesting Retrial) (1) A retrial shall be requested within thirty
days from the date on which the petitioner becomes aware of the grounds for the
retrial after the trial ruling became final and conclusive.
(2) Where a retrial is requested on the ground of defects in the authority of
representative, the period provided for in paragraph (1) shall be counted from the
day following the date on which the petitioner or his/her legal representative
becomes aware that the trial decision had been rendered, by means of service of the
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certified copy of such ruling.
(3) No request for a retrial shall be made after the expiration of three years from
the date on which the trial ruling became final and conclusive.
(4) Where grounds for a retrial arise after the trial decision has become final and
conclusive, the period prescribed in paragraph (3) shall be counted from the day
following the date on which the grounds first arose.
(5) Paragraphs (1) and (3) shall not apply to a request for a retrial made on the
grounds that the trial ruling conflicts with a final and conclusive trial decision
previously rendered.
Article 181 (Restriction on Effects of Patent Rights Restored by Retrial) (1) Patent
rights shall not be effective to any product that was imported into, manufactured or
acquired in good faith, in the Republic of Korea after the trial decision became final
and conclusive but before a request for a retrial has been registered in any of the
following cases: <Amended by Act No. 5576, Sep. 23, 1998; Act No. 6411, Feb. 3,
2001; Act No. 7871, Mar. 3, 2006>
1. Where the patent right whose patent or registration of term extension was
concluded to be invalid has been restored by a retrial;
2. Where a trial decision to the contrary through a retrial has become final and
conclusive after a trial decision that a product was outside the scope of the patent
right became final and conclusive;
3. Where the establishment of a patent right or the extension of a patent term with
respect to a patent application or application for registration of extension of patent
term, previously refused by a trial decision, has been registered through a retrial.
(2) Patent rights under any subparagraph of paragraph (1) shall not extend to any
of the following acts: <Amended by Act No. 5080, Dec. 29, 1995>
1. Working the invention in good faith after a trial decision became final and
conclusive but before the registration of a request for retrial;
2. In cases of a patent for an invention of a product, manufacturing, assigning,
leasing, importing, or offering for to assign or lease such articles as to be used
exclusively for the manufacture of the products, in good faith, after trial decision
became final and conclusive but before the registration of a request for retrial;
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3. In cases of a patent for an invention of a process, manufacturing, assigning,
leasing, importing, offering to assign or lease such articles as to be used
exclusively for the working of the process, in good faith, after a trial decision
became final and conclusive but before the registration of a request for retrial.
Article 182 (Non-exclusive License for Prior User of Patent Right Restored through
Retrial)
For cases which fall under any subparagraph of Article 181 (1), any person who has,
in good faith, commercially or industrially worked the invention in the Republic of
Korea, or has been making preparations therefor, after a trial ruling became final and
conclusive but prior to the registration of a request for retrial, such person shall have
a non-exclusive license on the patent right to the extent of the invention and of the
purpose of business which is being worked or of which the preparations for working
are being made.
Article 183 (Non-exclusive License for Person Deprived of Non-exclusive License by
Retrial) (1) After a decision to grant a non-exclusive license under Article 138 (1)
or (3) has become final and conclusive, where a decision to the contrary is rendered
through a retrial, any person who has, in good faith, commercially or industrially
worked the invention in the Republic of Korea or has been making preparations
therefor under a non-exclusive license, prior to the registration of a request for
retrial, shall have a non-exclusive license on the patent right or on the exclusive
license existing at the time the decision at the retrial becomes final and conclusive,
to the extent of the purpose of his/her business and to the scope of the invention
under the original non-exclusive license.
(2) Article 104 (2) shall apply mutatis mutandis to cases under paragraph (1).
Article 184 (Mutatis Mutandis Application of Provisions on Trial to Retrial)
The provisions relating to the procedures of a trial shall apply mutatis mutandis to
procedures of a retrial on a trial, unless they are not compatible.
[This Article Wholly Amended by Act No. 4892, Jan. 5, 1995]
Article 185 (Mutatis Mutandis Application of the Civil Procedure Act)
Article 459 (1) of the Civil Procedure Act shall apply mutatis mutandis to requests
for retrial.<Amended by Act No. 6626, Jan. 26, 2002; Act No. 7871, Mar. 3, 2006>
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CHAPTER IX LITIGATION
Article 186 (Action against Trial Decision, etc.) (1) The Patent Court of Korea shall
have original jurisdiction over any action against a trial decision or dismissal of a
request for a trial or retrial. <Amended by Act No. 6411, Feb. 3, 2001>
(2) The action prescribed in paragraph (1) may be brought by a person who is a
party, intervenor or any person who has requested for intervention in the trial but
has been rejected.
(3) The action prescribed in paragraph (1) shall be brought within thirty days from
the date of receipt of a certified copy of the trial decision or ruling.
(4) The period prescribed in paragraph (3) shall be invariable.
(5) With respect to an invariable period as referred to in paragraph (4), the
presiding administrative patent judge may, ex officio, determine any additional period
for the benefit of a person residing in a remote area or area with poor transportation.
<Newly Inserted by Act No. 5576, Sep. 23, 1998>
(6) No action may be brought unless it relates to matters for which a trial may be
requested.
(7) No action under paragraph (1) on a trial decision on consideration under Article
162 (2) 4 and a trial decision or ruling on trial costs under Article 165 (1) may be
brought independently.
(8) Any person who has received a ruling from the Patent Court may appeal to the
Supreme Court.
[This Article Wholly Amended by Act No. 4892, Jan. 5, 1995]
Article 187 (Qualification for Defendants)
In an action under Article 186 (1), the Commissioner of the Korean Intellectual
Property Office shall be a defendant: Provided, That in cases of a trial or trial
decisions on a retrial under Articles 133 (1), 134 (1) and (2), 135 (1), 137 (1), and
138 (1) and (3) or retrial, the petitioner or the defendant thereof shall be a
defendant.<Amended by Act No. 11117, Dec. 2, 2011>
[This Article Wholly Amended by Act No. 4892, Jan. 5, 1995]
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Article 188 (Notification of Institution of Action and Service of Original Copy of
Judgment) (1) When an action under Article 186 (1) is instituted or an appeal
under Article 186 (8) is filed, the court shall promptly notify the President of the
Intellectual Property Tribunal thereof. <Amended by Act No. 6411, Feb. 3, 2001>
(2) When an action under the proviso to Article 187 (1) has been concluded, the
court shall serve an original copy of a judgment on the President of the Intellectual
Property Tribunal.
[This Article Wholly Amended by Act No. 4892, Jan. 5, 1995]
Article 188-2 (Exclusion, Challenge or Avoidance of Technical Examiner) (1) Article
148 of this Act, Articles 42 through 45, 47 and 48 of the Civil Procedure Act shall
apply mutatis mutandis to exclusion or challenge of technical examiners under
Article 54-2 of the Court Organization Act. <Amended by Act No. 6626, Jan. 26,
2002; Act No. 7871, Mar. 3, 2006>
(2) A decision on a request for exclusion or challenge of a technical examiner under
paragraph (1) shall be made by a trial of court to which the technical examiner
belongs.
(3) If there are justifiable grounds for exclusion or challenge, any technical
examiner may avoid trial proceedings relating to the case with permission from the
President of the Intellectual Property Tribunal.
[This Article Newly Inserted by Act No. 4892, Jan. 5, 1995]
Article 189 (Revocation of Trial Decision or Ruling) (1) Where the court deems that an
action instituted under Article 186 (1) is well-grounded, it shall revoke the relevant
trial decision or ruling by judgment.
(2) Where a reversal of trial decision or ruling becomes final and conclusive under
paragraph (1), the administrative patent judge shall review the case and make a trial
decision or ruling.
(3) The reasons for a judgment on an action under paragraph (1) which constitute
the basis for the revocation shall bind the Intellectual Property Tribunal with respect
to the case.
[This Article Wholly Amended by Act No. 4892, Jan. 5, 1995]
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Article 190 (Action against Decision on Compensation or Consideration) (1) A person
dissatisfied with a decision and ruling or an adjudication regarding the compensation
or consideration under Article 41 (3) and (4), 106 (3), 106-2 (3), 110 (2) 2, and
138 (4) may bring an action before the court. <Amended by Act No. 6411, Feb. 3,
2001; Act No. 9985, Jan. 27, 2010>
(2) An action under paragraph (1) shall be filed within thirty days from the date a
certified copy of the decision and ruling or adjudication is served. <Amended by Act
No. 6411, Feb. 3, 2001>
(3) The period prescribed in paragraph (2) shall be invariable.
Article 191 (Defendant in Action relating to Compensation or Consideration)
In an action under Article 190, any of the following persons shall be a defendant:
<Amended by Act No. 7289, Dec. 31, 2004; Act No. 9985, Jan. 27, 2010>
1. The government agency or applicant liable for payment of compensation in cases
of compensation under Article 41 (3) and (4);
2. The government agency, patentee, exclusive licensee or non-exclusive licensee
liable for payment of compensation in cases of compensation under Article 106 (3)
and 106-2 (3);
3. The non-exclusive licensee, exclusive licensee, patentee or owner of a utility
model or a registered design in cases of consideration under Articles 110 (2) 2 and
138 (4).
Article 191-2 (Remuneration for Patent Attorney and Costs of Litigation)
With respect to remuneration to be paid to a patent attorney who performs a lawsuit
on behalf of a party, Article 109 of the Civil Procedure Act shall apply mutatis
mutandis. In such cases, "lawyer" shall be construed as "patent attorney."
[This Article Newly Inserted by Act No. 7871, Mar. 3, 2006]
CHAPTER X INTERNATIONAL APPLICATIONS UNDER PATENT COOPERATION
TREATY
SECTION 1 International Application Procedure
Article 192 (Persons Capable of International Application)
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Any of the following persons may file an international application with the
Commissioner of the Korean Intellectual Property Office:<Amended by Act No. 4541, Mar.
6, 1993; Act No. 4594, Dec. 10, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act
No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
1. A national of the Republic of Korea;
2. A foreigner who has a domicile or place of business in the Republic of Korea;
3. A person who does not fall under subparagraph 1 or 2 but who files an
international application under 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.
Article 193 (International Application) (1) A person intending to file an international
application shall submit to the Commissioner of the Korean Intellectual Property
Office a request, description, the scope of claims, drawings (where required) and an
abstract prepared in a language prescribed by Ordinance of the Ministry of Trade,
Industry and Energy. <Amended by Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec.
29, 1995; Act No. 5576, Sep. 23, 1998; Act No. 7871, Mar. 3, 2006; Act No. 8852,
Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
(2) The request mentioned in paragraph (1) shall contain the following: <Amended
by Act No. 4594, Dec. 10, 1993; Act No. 7871, Mar. 3, 2006>
1. A petition to the effect that the international application be processed according to
the Patent Cooperation Treaty;
2. The designation of the contracting states of the Patent Cooperation Treaty in
which protection for the invention is desired on the basis of the international
application;
3. If the applicant intends to obtain a regional patent referred to in Article 2 (iv) of
the Patent Cooperation Treaty, an indication to that effect;
4. The name or title, domicile or place of business, and nationality, of the applicant;
5. The name and domicile or place of business of the representative, if any;
6. The title of the invention;
7. The name and domicile, or place of business, of the inventor (limited to cases
where the national law of a designated state requires that these indications be
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furnished).
(3) The description mentioned in paragraph (1) shall disclose the invention in a
manner sufficiently clear and complete for the invention to be carried out easily by a
person skilled in the art to which the invention pertains.
(4) The claims mentioned in paragraph (1) shall clearly and concisely define the
matter for which protection is sought and be fully supported by the description.
(5) Other necessary matters which are not prescribed in paragraphs (1) through (4)
concerning an international application shall be prescribed by Ordinance of the
Ministry of Trade, Industry and Energy. <Amended by Act No. 4541, Mar. 6, 1993;
Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29,
2008; Act No. 11690, Mar. 23, 2013>
Article 194 (Recognition, etc. of International Filing Date) (1) The Commissioner of
the Korean Intellectual Property Office shall deem the date of receipt of the
international application as the international filing date under Article 11 of the Patent
Cooperation Treaty (hereinafter referred to as "international filing date"): Provided,
That this shall not apply to the following cases: <Amended by Act No. 7871, Mar. 3,
2006>
1. Where the applicant does not meet the requirements prescribed in Article 192;
2. Where the international application is not in the language prescribed under Article
193 (1);
3. Where the international application does not contain a description and scope of
claims under Article 193 (1);
4. Where the elements listed in Article 193 (2) 1 and 2 and the name or title of the
applicant are not indicated.
(2) If an international application falls under the proviso to paragraph (1), the
Commissioner of the Korean Intellectual Property Office shall order the applicant to
amend the defect, in writing, within a designated deadline. <Amended by Act No.
4594, Dec. 10, 1993>
(3) If an international application refers to a drawing which is not included in that
application, the Commissioner of the Korean Intellectual Property Office shall notify
the applicant thereof.
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(4) The Commissioner of the Korean Intellectual Property Office shall deem the
international filing date as the date of receipt of the amendment in writing when the
applicant ordered to make an amendment under paragraph (2) has complied with the
invitation within the designated deadline, or as the date of receipt of the drawings
when the applicant notified under paragraph (3) has furnished the drawings within
the deadline prescribed by Ordinance of the Ministry of Trade, Industry and Energy:
Provided, That if the applicant notified under paragraph (3) has not furnished the
drawings within the deadline prescribed by Ordinance of the Ministry of Trade,
Industry and Energy, reference to the said drawings shall be considered nonexistent.
<Amended by Act No. 4541, Mar. 6, 1993; Act No. 4594, Dec. 10, 1993; Act No.
5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29, 2008; Act
No. 11690, Mar. 23, 2013>
Article 195 (Order to Amend)
The Commissioner of the Korean Intellectual Property Office shall order the
applicant to make an amendment within a designated deadline, if the international
application falls under any of the following subparagraphs:<Amended by Act No. 4541,
Mar. 6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29, 2008;
Act No. 11690, Mar. 23, 2013>
1. Where the title of the invention is not included;
2. Where an abstract is not submitted;
3. Where it violates Article 3 or 197 (3);
4. Where it violates the requirements prescribed by Ordinance of the Ministry of
Trade, Industry and Energy.
Article 196 (International Application Considered to have been Withdrawn, etc.) (1) An
international application shall be deemed withdrawn if it falls under any of the
following subparagraphs: <Amended by Act No. 4541, Mar. 6, 1993; Act No. 5080,
Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006; Act No.
8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
1. Where an applicant ordered to make an amendment under Article 195 has failed
to do so within the designated deadline;
2. Where an official fee with regard to an international application has not been paid
within the deadline prescribed by Ordinance of the Ministry of Trade, Industry and
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Energy, and Article 14 (3) (a) of the Patent Cooperation Treaty therefore becomes
applicable;
3. With regard to an international application to which an international filing date has
been recognized under Article 194, the said application is found to fall under any
subparagraph of the proviso to Article 194 (1), within the deadline prescribed by
Ordinance of the Ministry of Trade, Industry and Energy.
(2) If any portion of an official fee payable with regard to an international application
has not been paid within the deadline prescribed by Ordinance of the Ministry of
Trade, Industry and Energy, and Article 14 (3) (b) of the Patent Cooperation Treaty
therefore becomes applicable, the designation of the designated state which has not
paid such official fee shall be deemed withdrawn. <Amended by Act No. 4541, Mar.
6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 7871,
Mar. 3, 2006; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
(3) If an international application, or designation of a designated state, is considered
to have been withdrawn under paragraphs (1) and (2), the Commissioner of the
Korean Intellectual Property Office shall notify the applicant of such fact.
Article 197 (Common Representative, etc.) (1) Where two or more applicants jointly
file an international application, the procedures under Articles 192 through 196 and
198 may be initiated by a common representative of the applicants.
(2) Where two or more applicants jointly file an international application and do not
designate a common representative, a representative may be designated as their
common representative, as prescribed by Ordinance of the Ministry of Trade,
Industry and Energy. <Amended by Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec.
29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29, 2008; Act No. 11690,
Mar. 23, 2013>
(3) Where an applicant intends to allow a representative to initiate a procedure
under paragraph (1), he/she shall appoint a patent attorney as his/her representative
unless the procedure is initiated by a legal representative under Article 3.
Article 198 (Official Fees) (1) An applicant for an international application shall pay an
official fee.
(2) Matters necessary for official fees, and proceedings and deadline of the payment
thereof under paragraph (1), shall be prescribed by Ordinance of the Ministry of
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Trade, Industry and Energy. <Amended by Act No. 4541, Mar. 6, 1993; Act No.
5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29, 2008; Act
No. 11690, Mar. 23, 2013>
Article 198-2 (International Search and International Preliminary Examination) (1) The
Korean Intellectual Property Office shall perform duties as an international search
authority and as an international preliminary examination authority for an
international application in accordance with a convention concluded with the
International Bureau (hereinafter referred to as the "International Bureau") referred
to in Article 2 (xix) of the Patent Cooperation Treaty. <Amended by Act No. 7871,
Mar. 3, 2006; Act No. 9381, Jan. 30, 2009>
(2) Details concerning the performance of duties under paragraph (1) shall be
prescribed by Ordinance of the Ministry of Trade, Industry and Energy. <Amended
by Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
[This Article Newly Inserted by Act No. 5576, Sep. 23, 1998]
SECTION 2 Special Provisionson International Patent Applications
Article 199 (Patent Application Based on International Application) (1) An
international application for which an international filing date has been recognized
under the Patent Cooperation Treaty, and which designates the Republic of Korea as
a designated state in order to obtain a patent, shall be deemed a patent application
filed on its international filing date. <Amended by Act No. 7871, Mar. 3, 2006>
(2) Article 54 shall not apply to an international application deemed a patent
application under paragraph (1) (hereinafter referred to as "international patent
application").
Article 200 (Special Provisions concerning Inventions Not Deemed to be Publicly
Known, etc.)
Notwithstanding Article 30 (2), any person intending to have Article 30 (1) 1 applied
to the invention claimed in an international patent application may submit to the
Commissioner of the Korean Intellectual Property Office a written statement stating
the purport of such intention and a document proving the relevant fact within the
period prescribed by Ordinance of the Ministry of Trade, Industry and Energy.
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<Amended by Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001;
Act No. 7871, Mar. 3, 2006; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
Article 201 (Translation of International Patent Application) (1) An applicant who has
filed an international patent application in a foreign language shall submit to the
Commissioner of the Korean Intellectual Property Office a Korean translation of the
specification, scope of claims, drawings (only the text matter therein) and abstract
filed on the international filing date within two years and seven months from the
priority date (hereinafter referred as "priority date") as defined in Article 2 (xi) of
the Patent Cooperation Treaty (hereinafter referred to as "period for submitting
domestic documents"): Provided, That in cases where the said applicant has
amended the claims under Article 19 (1) of the Patent Cooperation Treaty, he/she
may substitute a Korean translation of the amended claims for the Korean translation
of the claims filed on the international filing date. <Amended by Act No. 5329, Apr.
10, 1997; Act No. 5576, Sep. 23, 1998; Act No. 6768, Dec. 11, 2002; Act No. 7871,
Mar. 3, 2006>
(2) If the translations of the specification and claims under paragraph (1) have not
been submitted within the period for submitting domestic documents, the
international patent application shall be deemed to have been withdrawn.
(3) An applicant who has submitted the translation referred to in paragraph (1) may
submit a new translation to replace the prior translation within the period for
submitting domestic documents: Provided, That this shall not apply where the
applicant has made a request for examination.
(4) Matters stated in the specification, claims and text matter of drawings of an
international patent application filed on the international filing date, but not stated in
the translation under paragraph (1) or (3) (hereinafter referred to as "translated
version") submitted within the period for submitting domestic documents (or the date
of the request for examination where the applicant has made such request within the
said period; hereinafter referred to as "relevant date") shall be deemed not to have
been stated in the specification and claims of the said international patent application
filed on the international filing date or deemed to have no text in the drawings of
such application.
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(5) An application of an international patent application submitted on the
international filing date shall be deemed an application submitted under Article 42
(1).
(6) The translated version of the specification, scope of claims, drawings and
abstract of an international patent application (the specification, scope of claims,
drawings and abstract submitted on the international filing date, in cases of an
international patent application made in the Korean language) shall be deemed the
specification, drawings and abstract submitted under Article 42 (2). <Amended by
Act No. 5576, Sep. 23, 1998>
(7) Article 204 (1) and (2) shall not apply where a Korean translation of the
amended claims has been submitted pursuant to the proviso to paragraph (1).
<Newly Inserted by Act No. 5329, Apr. 10, 1997>
(8) Where the Korean translation for only the amended claims has been submitted
pursuant to the proviso to paragraph (1), the claims submitted at the international
filing date shall not be recognized. <Newly Inserted by Act No. 5329, Apr. 10,
1997>
Article 202 (Special Provisions on Priority Claim by Patent Application, etc.) (1)
Articles 55 (2) and 56 (2) shall not apply to an international patent application.
(2) In applying Article 55 (4), "specification or drawings initially attached to the
earlier application" shall be construed as "specification, scope of claims or drawings
(only text matter thereof) submitted on the international filing date under Article 201
(1), and the translated version of the said documents under Article 201 (4) or
drawings (excluding the text matter thereof) of the international application
submitted on the international filing date", and "laying open for public inspection"
shall be construed as "international publication under Article 21 of the Patent
Cooperation Treaty." <Amended by Act No. 7871, Mar. 3, 2006>
(3) Where an earlier application is an international patent application or an
application for registration of an international utility model pursuant to Article 34 (2)
of the Utility Model Act, the following subparagraphs shall apply for the purposes of
Articles 55 (1) and (3) through (5) and 56 (1): <Amended by Act No. 9381, Jan.
30, 2009>
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1. "Specification or drawings initially attached to an application" in the main text of
Article 55 (1), Article 55 (3) and the main text of Article 55 (5) shall be construed
as "specification, scope of claims or drawings of an international application
submitted on the international filing date";
2. "Specification or drawings initially attached to an earlier application" in Article 55
(4) shall be construed as "specification, scope of claims or drawings of an
international application submitted on the international filing date of an earlier
application", and "laid open with respect to an earlier application" shall be construed
as "published internationally pursuant to Article 21 of the Patent Cooperation
Treaty with respect to the earlier application";
3. "At the time of expiration of one year and three months from the filing date" in
the main text of Article 56 (1) shall be construed as "at the time of expiration of
one year and three months from the international filing date, or on the basic date
pursuant to Article 201 (4) of this Act, or Article 35 (4) of the Utility Model Act,
whichever comes later."
(4) Where an earlier application pursuant to Article 55 (1) is an international
application which becomes a patent application or application for registration of a
utility model pursuant to Article 214 (4) of this Act, or Article 40 (4) of the Utility
Model Act, the following subparagraphs shall apply for the purposes of Articles 55
(1) and (3) through (5) and 56 (1): <Amended by Act No. 9381, Jan. 30, 2009>
1. "Specification or drawings initially attached to an application" in the main text of
Article 55 (1), Article 55 (3), and the main text of Article 55 (5) shall be
construed as "specification, scope of claims, or drawings of an international
application on the date which may have been deemed the international filing date
pursuant to Article 214 (4) of this Act, or Article 40 (4) of the Utility Model Act";
2. "Specification or drawings initially attached to an earlier application" in Article 55
(4) shall be construed as "specification, scope of claims, or drawings of an
international application of an earlier application on the date which may have been
deemed the international filing date pursuant to Article 214 (4) of this Act, or
Article 40 (4) of the Utility Model Act";
3. "At the time of expiration of one year and three months from the filing date" in
the main text of Article 56 (1) shall be construed as "at the time of expiration of
one year and three months from the date which may have been deemed the
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international filing date pursuant to Article 214 (4) of this Act, or Article 40 (4) of
the Utility Model Act, or when a decision is made pursuant to Article 214 (4) of
this Act, or Article 40 (4) of the Utility Model Act, whichever comes later."
Article 203 (Submission of Documents) (1) An applicant for an international patent
shall submit to the Commissioner of the Korean Intellectual Property Office a
document stating the following matters within the period for submitting domestic
documents. In such cases, an applicant who has filed an international patent
application in a foreign language shall submit a Korean translation under Article 201
(1), together with such document: <Amended by Act No. 6411, Feb. 3, 2001; Act
No. 6768, Dec. 11, 2002>
1. The name and domicile of the applicant (if the applicant is a juristic person, its
title and location of place of business);
2. The name and domicile or place of business of the representative, if any (if the
representative is a patent corporation, its title, location of office and designated
patent attorney's name);
3. Deleted;<by Act No. 6411, Feb. 3, 2001>
4. The title of the invention;
5. The name and domicile, or place of business of the inventor;
6. The international filing date and the international application number.
(2) The Commissioner of the Korean Intellectual Property Office shall, in any of the
following cases, order an amendment thereto designating a deadline: <Newly
Inserted by Act No. 6768, Dec. 11, 2002>
1. Where a document under the former part of paragraph (1) is not submitted within
the period for submitting domestic documents;
2. Where a document submitted under the former part of paragraph (1) is in
violation of the formalities as specified by this Act or by an order made by this Act.
(3) Where a person who receives an order for amendment under paragraph (2) fails
to make such amendment within the designated deadline, the Commissioner of the
Korean Intellectual Property Office may invalidate the international patent application
concerned. <Newly Inserted by Act No. 6768, Dec. 11, 2002>
Article 204 (Amendment after Receipt of International Search Report) (1) Where an
applicant who filed an international patent application, after having received an
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international search report pursuant to Article 19 (1) of the Patent Cooperation
Treaty, has amended the scope of claims of the international application, he/she shall
submit the documents falling under any of the following subparagraphs to the
Commissioner of the Korean Intellectual Property Office by the relevant date (where
the relevant date is the date of request for examination of application, referring to
such time when a request for examination of application is made; hereafter the same
shall apply in this Article and Article 205):
1. In cases of an international application filed in a foreign language, the Korean
translation of such amendment;
2. In cases of an international application filed in the Korean language, a copy of
such amendment.
(2) When the translation or a copy of the amendment has been submitted in
accordance with paragraph (1), the scope of claims pursuant to Article 47 (1) shall
be deemed to have been amended according to the translation or a copy of such
amendment: Provided, That when the amendment (limited to cases of an international
patent application filed in the Korean language) has been served on the Korean
Intellectual Property Office by the relevant date pursuant to Article 20 of the Patent
Cooperation Treaty, the scope of claims shall be deemed to have been amended
according to such amendment.
(3) Where an applicant who filed an international patent application has submitted a
brief statement pursuant to Article 19 (1) of the Patent Cooperation Treaty to the
International Bureau, he/she shall submit the documents falling under any of the
following subparagraphs to the Commissioner of the Korean Intellectual Property
Office by no later than the relevant date:
1. In cases of an international application filed in a foreign language, the Korean
translation of such statement;
2. In cases of an international application filed in the Korean language, a copy of
such statement.
(4) Where an applicant who filed an international patent application has failed to
comply with the formalities pursuant to paragraph (1) or (3) by the relevant date,
the written amendment or statement pursuant to Article 19 (1) of the Patent
Cooperation Treaty shall be deemed not to have been submitted: Provided, That this
shall not apply when the written amendment or statement of an international
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application filed in the Korean language has been served on the Korean Intellectual
Property Office by the relevant date pursuant to Article 20 of the Patent Cooperation
Treaty.
[This Article Wholly Amended by Act No. 9381, Jan. 30, 2008]
Article 205 (Amendment before Preparation of International Preliminary Examination
Report) (1) Where an applicant who filed an international patent application has
amended the specification, scope of claims, and drawings of an international patent
application pursuant to Article 34 (2) (b) of the Patent Cooperation Treaty, he/she
shall submit the documents falling under any of the following subparagraphs to the
Commissioner of the Korean Intellectual Property Office by the relevant date:
1. In cases of an international application filed in a foreign language, the Korean
translation of such amendment;
2. In cases of an international application filed in the Korean language, a copy of
such amendment.
(2) When the translation or a copy of the amendment has been submitted pursuant
to paragraph (1), the specification and drawings prescribed in Article 47 (1) shall be
deemed to have been amended according to the translation or a copy of such
amendment: Provided, That this shall not apply when the written amendment (limited
to cases of an international patent application filed in the Korean language) has been
served on the Korean Intellectual Property Office by the relevant date pursuant to
Article 36 (3) (a) of the Patent Cooperation Treaty.
(3) Where an applicant who filed an international patent application has failed to
comply with the formalities pursuant to paragraph (1) by the relevant date, a written
amendment pursuant to Article 34 (2) (b) of the Patent Cooperation Treaty shall be
deemed not to have been submitted: Provided, That this shall not apply when the
written amendment (limited to cases of an international patent application filed in the
Korean language) has been served on the Korean Intellectual Property Office by the
relevant date pursuant to Article 36 (3) (a) of the Patent Cooperation Treaty.
[This Article Wholly Amended by Act No. 9381, Jan. 30, 2009]
Article 206 (Special Provisions on Patent Administrators for Overseas Residents) (1)
Notwithstanding the provisions of Article 5 (1), an overseas resident applicant for an
international patent may initiate a patent-related procedure application without a
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patent administrator by the relevant date.
(2) An overseas resident who has submitted a translation of an application under
paragraph (1) shall appoint a patent administrator and report such fact to the
Commissioner of the Korean Intellectual Property Office within the deadline
prescribed by Ordinance of the Ministry of Trade, Industry and Energy. <Amended
by Act No. 4541, Mar. 6, 1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3,
2001; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
(3) An international application shall be deemed to have been withdrawn where the
appointment of a patent administrator is not reported within the deadline prescribed
by paragraph (2).
Article 207 (Special Provisions on Time and Effect of Laying Open Application) (1)
When Article 64 (1) applies to the laying-open of an international patent application,
"at the time of expiration of one year and six months from any of the following dates"
shall be construed as "at the time of expiration of the period for submitting domestic
documents (in cases of an international application for which an applicant has
requested an examination of a patent application and which has been internationally
published pursuant to Article 21 of the Patent Cooperation Treaty, when one year
and six months have passed from the preference date or the date of request for
examination of application, whichever is later)." <Amended by Act No. 9381, Jan. 30,
2009>
(2) Notwithstanding paragraph (1), where an international application filed in the
Korean language has already been published internationally in accordance with
Article 21 of the Patent Cooperation Treaty before the application is laid open
pursuant to paragraph (1), such international application shall be deemed to have
been laid open at the time of such international publication. <Newly Inserted by Act
No. 9381, Jan. 30, 2009>
(3) An applicant who filed an international patent application may, after the domestic
laying-open (in cases of an international application filed in the Korean language,
referring to an international publication pursuant to Article 21 of the Patent
Cooperation Treaty; hereafter the same shall apply in this paragraph) and after
having issued a warning in the form of a document describing the contents of the
invention claimed in the international patent application, demand of a person who has
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commercially or industrially worked the invention, after the warning but before the
registration of a patent right, the payment of compensation in an amount equivalent
to what he/she would normally receive for the working of the invention. Even in the
absence of a warning, this shall apply to a person who commercially or industrially
worked the invention before the domestic laying-open and who had known that the
invention was the one claimed in the international patent application: Provided, That
the applicant shall not claim the right for compensation before the registration of a
patent right. <Amended by Act No. 5329, Apr. 10, 1997; Act No. 9381, Jan. 30,
2009>
Article 208 (Special Provisions on Amendment) (1) Notwithstanding Article 47 (1), no
amendment (excluding an amendment under Articles 204 (2) and 205 (2)) to an
international patent application shall be made unless all the following requirements
are satisfied: <Amended by Act No. 9381, Jan. 30, 2009>
1. Official fees pursuant to Article 82 (1) shall be paid;
2. The Korean translation pursuant to Article 201 (1) shall be submitted: Provided,
That this shall not apply to an international patent application filed in the Korean
language;
3. The relevant date shall have passed (where the relevant date is the date of
request for an examination of application, referring to the time of filing a request
for examination of application).
(2) Deleted. <by Act No. 6411, Feb. 3, 2001>
(3) With regard to the scope of an amendment made to an international patent
application filed in a foreign language, "features stated in the specification or
drawings initially attached to the patent application" in Article 47 (2) shall be
construed as "features stated in a translation of the specification, scope of claims or
drawings (only the text matter therein), or the features stated in the drawings
(excluding the text matter therein), in the international patent application submitted
on the international filing date." <Amended by Act No. 6411, Feb. 3, 2001; Act No.
7871, Mar. 3, 2006>
(4) and (5) Deleted. <by Act No. 6411, Feb. 3, 2001>
Article 209 (Restriction on Time of Conversion of Utility Model Registration Application)
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Notwithstanding Article 53 (1) of this Act, a patent application made on the basis of
and by converting from an international application which is deemed a utility model
registration application filed on the international filing date under Article 34 (1) of
the Utility Model Act may not be filed until the fees under Article 17 (1) of the
Utility Model Act have been paid, and a translation of the application under Article 35
(1) of the Utility Model Act (excluding cases of international utility model
registration application made in the Korean language) has been submitted (with
respect to an international application considered to be a utility model registration
application under Article 40 (4) of the Utility Model Act, until the decision under the
said provision has been made).<Amended by Act No. 7871, Mar. 3, 2006>
[This Article Wholly Amended by Act No. 5576, Sep. 23, 1998]
Article 210 (Restriction on Time of Request for Examination)
Notwithstanding Article 59 (2), an applicant of an international patent application
may not make a request for examination of his/her application until the proceedings
(excluding cases of international patent application made in the Korean language)
under Article 201 (1) have been taken and the official fees under Article 82 (1) have
been paid. A person, other than the applicant of an international patent application,
may not make a request for examination of the international patent application until
the period under Article 201 (1) has lapsed.<Amended by Act No. 5576, Sep. 23, 1998>
Article 211 (Orders to Submit Documents Cited in International Search Report, etc.)
The Commissioner of the Korean Intellectual Property Office may require an
applicant for an international patent to submit copies of the references cited in the
international search report under Article 18 of the Patent Cooperation Treaty and the
international preliminary examination report under Article 35 of the said Treaty,
designating a deadline.<Amended by Act No. 7871, Mar. 3, 2006>
Article 212 Deleted.<by Act No. 7871, Mar. 3, 2006>
Article 213 (Special Provisions on Invalidation Trial of Patent)
With respect to a patent granted for an international patent application filed in a
foreign language, an invalidation trial thereagainst may be brought on the grounds
that the invention concerned does not fall under any of the following subparagraphs
as well as the grounds falling under any subparagraph of Article 133 (1):<Amended by
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Act No. 7871, Mar. 3, 2006>
1. An invention described in both the specification, scope of claims or drawings
(limited to the text matter therein) in the international application submitted on the
international filing date and the translated version thereof;
2. An invention described in the drawings (excluding the text matter therein) in the
international application submitted on the international filing date.
[This Article Wholly Amended by Act No. 6768, Dec. 11, 2002]
Article 214 (International Application Considered to be Patent Application by Ruling)
(1) An applicant who has filed an international application may, where the
international application (only applicable to a patent application) which includes the
Republic of Korea in the designated states listed in Article 4 (1) (ii) of the Patent
Cooperation Treaty falls under any of the following subparagraphs, request that the
Commissioner of the Korean Intellectual Property Office render a decision pursuant
to Article 25 (2) (a) of the same Treaty, within the period prescribed by Ordinance
of the Ministry of Trade, Industry and Energy, as prescribed by Ordinance of the
Ministry of Trade, Industry and Energy: <Amended by Act No. 9381. Jan 30, 2009;
Act No. 11690, Mar. 23, 2013>
1. Where a receiving office referred to in Article 2 (xv) of the Patent Cooperation
Treaty has rejected such international application pursuant to Article 25 (1) (a) of
the same Treaty;
2. Where a receiving office referred to in Article 2 (xv) of the Patent Cooperation
Treaty has made a declaration on such international application pursuant to Article
25 (1) (a) or (b) of the same Treaty;
3. Where the International Bureau has recognized such international application
pursuant to Article 25 (1) (a) of the same Treaty.
(2) A person who intends to make a request under paragraph (1) shall submit to the
Commissioner of the Korean Intellectual Property Office a Korean translation of the
specification, scope of claims or drawings (limited to the text matter thereof) as well
as other documents relating to the international application provided by Ordinance of
the Ministry of Trade, Industry and Energy. <Amended by Act No. 4541, Mar. 6,
1993; Act No. 5080, Dec. 29, 1995; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb.
29, 2008; Act No. 11690, Mar. 23, 2013>
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(3) Where a request under paragraph (1) has been made, the Commissioner of the
Korean Intellectual Property Office shall decide whether the refusal, declaration or
finding was justified under the Patent Cooperation Treaty and the Regulations
thereunder. <Amended by Act No. 7871, Mar. 3, 2006>
(4) Where the Commissioner of the Korean Intellectual Property Office has made a
decision under paragraph (3) to the effect that the refusal, declaration or finding was
not justified under the Patent Cooperation Treaty and the Regulations thereunder,
the international application concerned shall be considered to be a patent application
filed on the date which would have been recognized as the international filing date if
the said refusal, declaration or finding had not been made in respect of the said
international application. <Amended by Act No. 7871, Mar. 3, 2006>
(5) Where the Commissioner of the Korean Intellectual Property Office decides on
the justification pursuant to paragraph (3), he/she shall serve a certified copy of the
decision on the relevant applicant for an international patent. <Newly Inserted by
Act No. 8197, Jan. 3, 2007>
(6) Articles 199 (2), 200, 201 (4) through (8), 202 (1) and (2), 208, 210 and 213
shall apply mutatis mutandis to international applications considered to be patent
applications under paragraph (4). <Amended by Act No. 5576, Sep. 23, 1998; Act
No. 7871, Mar. 3, 2006>
(7) In cases of the laying open of an international application considered to be a
patent application under paragraph (4), "filing date of a patent application" in Article
64 (1) shall be construed as "priority date referred to in Article 201 (1)."
CHAPTER XI SUPPLEMENTARY PROVISIONS
Article 215 (Special Provisions for Patent or Patent Right with Two or More Claims)
Where Articles 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 and 182 of this Act
and Article 26 (1) 2, 4 or 5 of the Utility Model Act apply to a patent or patent right
with two or more claims, a patent shall be deemed to have been granted, or a patent
right to have been established, for each claim.<Amended by Act No. 7871, Mar. 3, 2006>
[This Article Wholly Amended by Act No. 6411, Feb. 3, 2001]
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Article 215-2 (Special Provisions for Registration of Patent Application with Two or
More Claims) (1) Where a person who has received a decision to grant a patent for
a patent application with two or more claims has paid the registration fees, the
person may abandon individual claims.
(2) Matters necessary for the abandonment of claims under paragraph (1) shall be
prescribed by Ordinance of the Ministry of Trade, Industry and Energy. <Amended
by Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
[This Article Newly Inserted by Act No. 6411, Feb. 3, 2001]
Article 216 (Inspection of Documents, etc.) (1) A person who intends to receive a
certificate for a patent or a trial, a certified copy or extract of documents, or inspect
or copy the Patent Register or documents may request the Commissioner of the
Korean Intellectual Property Office or the President of the Intellectual Property
Tribunal to that effect. <Amended by Act No. 4892, Jan. 5, 1995>
(2) The Commissioner of the Korean Intellectual Property Office or the President of
the Intellectual Property Tribunal may refuse to permit the request referred to in
paragraph (1) if it relates to a patent application, the establishment of which has not
been registered or which has not been laid open for public inspection, or if it relates
to matters liable to contravene public order or morality. <Amended by Act No. 4892,
Jan. 5, 1995; Act No. 5329, Apr. 10, 1997; Act No. 9381, Jan. 30, 2009>
Article 217 (Prohibition of Documents Relating to Patent Application, Examination, Trial,
Retrial, Patent Register, etc. from being Taken out or Opened to Public) (1)
Documents relating to a patent application, examination, trial or retrial or the Patent
Register shall be prohibited from being taken out except for any of the following
cases: <Amended by Act No. 7871, Mar. 3, 2006; Act No. 8171, Jan. 3, 2007; Act
No. 10012, Feb. 4, 2010>
1. Where documents relating to patent applications or examinations are taken out for
the purpose of searching prior art, etc. under Article 58 (1) or (2);
2. Where documents relating to patent applications, examinations, trials or retrials
or the Patent Register are taken out for the purpose of entrusting the affairs of
digitizing patent documents under Article 217-2 (1);
3. Where documents relating to patent applications, examinations, trials or retrials
or the Patent Register are taken out for the purpose of online remote working
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under Article 32 (2) of the Electronic Government Act.
(2) A response shall not be given to a request for an expert opinion, testimony or an
inquiry as to the contents of a pending patent application, examination, trial, or retrial
that is in process, or as to the contents of an examiner's decision, trial decision or
ruling. <Amended by Act No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act
No. 7871, Mar. 3, 2006>
Article 217-2 (Agency for Affairs of Digitizing Patent Documents) (1) Where it is
deemed necessary to effectively deal with patent-related procedures, the
Commissioner of the Korean Intellectual Property Office may entrust any corporation
equipped with facilities and manpower prescribed by Ordinance of the Ministry of
Trade, Industry and Energy with the digitization of documents relating to patent
applications, examinations, trials or retrials or the Patent Register through an
electronic information processing system and its technology of utilizing the electronic
information processing system (hereinafter referred to "affairs of digitizing patent
documents"). <Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006;
Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
(2) Deleted. <by Act No. 7871, Mar. 3, 2006>
(3) A person who is or was an executive or employee of the person who has been
entrusted with the affairs of digitizing patent documents pursuant to paragraph (1)
(hereinafter referred to as "agency of digitizing patent documents") shall not divulge
confidential information on inventions or appropriate the invention disclosed in a
pending application to which he/she had access during the course of his/her duties.
(4) The Commissioner of the Korean Intellectual Property Office may, pursuant to
paragraph (1), digitize a written patent application or other documents prescribed by
Ordinance of the Ministry of Trade, Industry and Energy, which fail to be submitted
by means of an electronic document as prescribed in Article 28-3 (1), and may
record them in a file of an electronic information processing system operated by the
Korean Intellectual Property Office or the Intellectual Property Tribunal. <Newly
Inserted by Act No. 5576, Sep. 23, 1998; Act No. 6411, Feb. 3, 2001; Act No. 8852,
Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
(5) The details written in a file under paragraph (4) shall be deemed the same as
those entered in the documents concerned. <Newly Inserted by Act No. 5576, Sep.
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23, 1998>
(6) The method of carrying out the affairs of digitizing patent documents under
paragraph (1), and other matters necessary for carrying out the affairs of digitizing
patent documents, shall be determined by Ordinance of the Ministry of Trade,
Industry and Energy. <Amended by Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb.
29, 2008; Act No. 11690, Mar. 23, 2013>
(7) Where any agency of digitizing patent documents which fails to meet the
standards for facilities and manpower determined by Ordinance of the Ministry of
Trade, Industry and Energy under paragraph (1) does not comply with corrective
measures therefor taken by the Commissioner of the Korean Intellectual Property
Office, the latter may cancel the entrustment of the affairs of digitizing patent
documents to the agency. In such cases, he/she shall first provide the agency an
opportunity to present its opinion thereabout. <Newly Inserted by Act No. 7871,
Mar. 3, 2006; Act No. 8852, Feb. 29, 2008; Act No. 11690, Mar. 23, 2013>
[This Article Newly Inserted by Act No. 5329, Apr. 10, 1997]
Article 218 (Service of Documents)
Necessary matters related to procedures for service of documents, etc. in this Act
shall be prescribed by Presidential Decree.<Amended by Act No. 8197, Jan. 3, 2007>
Article 219 (Service by Public Announcement) (1) In cases where documents cannot
be served because the domicile or place of business of a person to be served is
unclear, service shall be made by public announcement.
(2) Service by public announcement shall be implemented by publishing a notice in
the Patent Gazette to the effect that the documents will be served at any time to the
person to be served.
(3) The initial service by public announcement shall come into force after the expiry
of two weeks from the date it is published in the Patent Gazette: Provided, That
subsequent service by public announcement on the same party shall come into force
from the date following its publication in the Patent Gazette.
Article 220 (Service of Documents to Overseas Residents) (1) For an overseas
resident having a patent administrator, documents shall be served on his/her patent
administrator.
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(2) For an overseas resident without a patent administrator, documents may be sent
to him/her by registered airmail.
(3) When documents have been sent by registered airmail under paragraph (2),
such documents shall be deemed to have been served on the mailing date.
Article 221 (Patent Gazette) (1) The Commissioner of the Korean Intellectual
Property Office shall publish the Patent Gazette, as prescribed by Presidential
Decree. <Amended by Act No. 11654, Mar. 22, 2013>
(2) The Patent Gazette may be published by electronic media, as prescribed by
Ordinance of the Ministry of Trade, Industry and Energy. <Newly Inserted by Act
No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act No. 8852, Feb. 29, 2008;
Act No. 11690, Mar. 23, 2013>
(3) In publishing the Patent Gazette by the electronic media, the Commissioner of
the Korean Intellectual Property Office shall make public matters regarding the fact
of publication of the Patent Gazette, its main contents, and service by public
announcement through information and communication networks. <Newly Inserted
by Act No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001>
Article 222 (Submission, etc. of Documents)
The Commissioner of the Korean Intellectual Property Office or any examiner may
require a party concerned to submit documents and articles necessary for dealing
with proceedings, other than those relating to trial or retrial.
Article 223 (Patent Indication)
A patentee or an exclusive or non-exclusive licensee may indicate an identification
of the patent upon a patented product in cases of an invention of a product or in
cases of an invention of process, on the manufactured product. If it is not possible to
place such indication on the product, the identification may be made on the container
or package thereof.
Article 224 (Prohibition of False Indication)
No person shall be allowed to perform any of the following acts:
1. Marking with an indication of a patent having been granted or patent application
having been filed, or any sign likely to cause confusion therewith, on an article for
which a patent has not been granted, a patent application is not pending, or upon an
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article manufactured by a process for which a patent has not been granted or a
patent application is not pending, or a container or package thereof;
2. Assigning, leasing or displaying an article which has been marked with an
indication referred to in subparagraph 1;
3. For the purpose of manufacture, use, assignment or lease of an article referred to
in subparagraph 1, marking with an indication upon advertisements, signboards or
tags that a patent has been granted, a patent application had been filed for it, that it
has been produced by a process for which a patent has been granted, a patent
application is pending, or marking with any sign likely to cause confusion therewith;
4. For the purpose of use, assignment or lease of a process for which a patent has
not been granted or a patent application is not pending, marking with an indication
on advertisements, signboards or tags that a patent has been granted, a patent
application had been filed for the process, or marking with any sign likely to cause
confusion therewith.
Article 224-2 (Restriction on Objection) (1) No objection may be raised under any
other Act against a ruling to dismiss an amendment, a decision of patentability, a trial
decision, or a ruling to dismiss a request for trial or retrial, and no objection may be
raised under any other Act against any disposition against which no objection may be
raised under this Act. <Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar.
3, 2006>
(2) Any objection against a disposition, other than that referred to in paragraph (1)
shall be governed by the Administrative Appeals Act or the Administrative Litigation
Act. <Newly Inserted by Act No. 7871, Mar. 3, 2006>
[This Article Wholly Amended by Act No. 5329, Apr. 10, 1997]
Article 224-3 (Order of Secrecy) (1) When the following grounds are explained in a
lawsuit against infringement of a patent right or exclusive license, with regard to
trade secret (referring to trade secret pursuant to subparagraph 2 of Article 2 of the
Unfair Competition Prevention and Trade Secret Protection Act) possessed by the
relevant party, the court may order, in its ruling, the other relevant party (in cases of
a juristic person, referring to the representative thereof), a person who files a
lawsuit on behalf of the relevant party or any other person who becomes aware of
trade secret due to the relevant lawsuit not to use the relevant trade secret for
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purposes other than for continuing the relevant lawsuit or not to disclose such secret
to any person, other than a person who has received an order with respect to the
relevant trade secret pursuant to this paragraph, upon the request of the relevant
party: Provided, That this shall not apply where the other relevant party (in cases of
a juristic person, referring to the representative thereof), a person who files a
lawsuit on behalf of the relevant party or any other person who becomes aware of
trade secret has already acquired such secret by methods, other than the perusal of
preparatory documents or examination of evidence prescribed in subparagraph 1
until the time of the relevant application:
1. That trade secret is included in preparatory documents which have already been
submitted or should be submitted, or evidence which has already been examined or
should be examined;
2. That the usage or disclosure of trade secret shall be restricted to prevent the
trade secret under subparagraph 1 from being used or disclosed for purposes other
than for filing the relevant lawsuit, as such usage or disclosure is likely to affect
the business operation of the relevant party.
(2) Requests for order (hereinafter referred to as "order of secrecy") under
paragraph (1) shall be made in written documents containing the following:
1. A person who receives an order of secrecy;
2. Actual facts which are enough to specify trade secret subject to order of secrecy;
3. Actual facts falling under subparagraphs of paragraph (1).
(3) When a decision is made on the order of secrecy, the court shall deliver such
written decision to a person who has received the order of secrecy.
(4) The order of secrecy shall take effect from the date when a written decision
under paragraph (3) is delivered to a person who has received the order of secrecy.
(5) The immediate appeal may be made against a trial which has dismissed or
rejected requests for the order of secrecy.
[This Article Newly Inserted by Act No. 11117, Dec. 2, 2011]
Article 224-4 (Revoking Order of Secrecy) (1) In cases where requirements
prescribed in Article 224-3 (1) have not been satisfied or fail to be satisfied any
longer, any person who has requested the order of secrecy or has received such
order may request the court which keeps trial records (if there is no court which
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keeps trial records, referring to the court which has issued the order of secrecy) to
revoke the order of secrecy.
(2) When a trial is to be conducted concerning requests for revocation of the order
of secrecy, the court shall deliver the relevant written decision to a person who has
made such requests and the other party.
(3) The immediate appeal may be made against a trial concerning requests for
revocation of the order of secrecy.
(4) A trial which revokes the order of secrecy shall become effective only after it is
made final and conclusive.
(5) A court which has held a trial concerning revocation of the order of secrecy
shall inform a person who has requested the revocation of the order of secrecy or a
person who has received such order concerning the relevant trade secret, other than
the other party, of a trial on the revocation of the order of secrecy, without delay.
[This Article Newly Inserted by Act No. 11117, Dec. 2, 2011]
Article 224-5 (Notice, etc. on Requests for Perusal, etc. of Trial Records) (1) In cases
where a decision under Article 163 (1) of the Civil Procedure Act is made with
respect to trial records concerning a lawsuit in which the order of secrecy is issued
(excluding a lawsuits in which all orders of secrecy are revoked), if the relevant
party has requested the perusal, etc. of confidential information prescribed in the
abovementioned paragraph, but a person who has not received the order of secrecy
has followed procedures for requests in the relevant lawsuit, the court clerical
official of Grade IV, court clerical official of Grade V, court clerical official of Grade
VI or court clerical official of Grade VII (hereinafter referred to as "court clerical
official of Grade V, etc." in this Article) shall inform the relevant party who has filed
a request (excluding a person who requested the relevant perusal, etc.; hereinafter
the same shall apply in paragraph (3)) pursuant to Article 163 (1) of the Civil
Procedure Act of the request for the relevant perusal immediately after such
request.
(2) In cases under paragraph (1), court clerical official of Grade V, etc. shall not
allow a person who has followed procedures for the relevant request to peruse
confidential information under paragraph (1) until two weeks lapse (if a request for
the order of secrecy is made during the period against a person who has followed
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procedures for the relevant request, until the time when a trial on the relevant
application becomes final and conclusive) from the date when a request under
paragraph (1) is made.
(3) The provisions of paragraph (2) shall not apply to cases where all the relevant
parties who have filed a request pursuant to Article 163 (1) of the Civil Procedure
Act have agreed to allow a person who has made a request pursuant to paragraph (1)
to peruse the confidential information under paragraph (1).
[This Article Newly Inserted by Act No. 11117, Dec. 2, 2011]
CHAPTER XII PENAL PROVISIONS
Article 225 (Offense of Infringement) (1) Any person who infringes a patent right or
exclusive license shall be punished by imprisonment not exceeding seven years or
by a fine not exceeding 100 million won. <Amended by Act No. 5329, Apr. 10, 1997;
Act No. 6411, Feb. 3, 2001>
(2) Prosecution for offenses under paragraph (1) shall be initiated upon filing of a
complaint by an injured party.
Article 226 (Offense of Divulging Confidential Information, etc.)
Where any present or former employee of the Korean Intellectual Property Office or
the Intellectual Property Tribunal has divulge confidential information on inventions
or appropriate the invention disclosed in a pending patent application (including an
invention for which an international application is pending) to which he/she had
learned in the course of performing his/her duties, such employee shall be punished
by imprisonment not exceeding five years or by a fine not exceeding 50 million won.
<Amended by Act No. 4892, Jan. 5, 1995; Act No. 9381, Jan. 30, 2009>
Article 226-2 (Executives and Employees of Specialized Institutions, etc. Deemed to be
as Public Officials)
A person who is or was an executive or employee of any specialized institution or
any agency of digitizing patent documents under Article 58 (1) shall be deemed one
who is or was an employee of the Korean Intellectual Property Office for purposes of
applying Article 226.<Amended by Act No. 6411, Feb. 3, 2001; Act No. 7871, Mar. 3, 2006; Act
No. 9381, Jan. 30, 2009>
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[This Article Newly Inserted by Act No. 5329, Apr. 10, 1997]
Article 227 (Offense of Perjury) (1) Where a witness, expert witness or interpreter,
having taken an oath under this Act, has made a false statement or provided a false
expert opinion or interpreted falsely before the Intellectual Property Tribunal, he/she
shall be punished by imprisonment not exceeding five years or by a fine not
exceeding 10 million won. <Amended by Act No. 4892, Jan. 5, 1995; Act No. 6411,
Feb. 3, 2001>
(2) Any person who has committed an offense under paragraph (1), who confesses
it before the trial decision concerned becomes final and conclusive, may be partially
or totally exempted from the application of the sentence. <Amended by Act No.
5329, Apr. 10, 1997; Act No. 7871, Mar. 3, 2006>
Article 228 (Offense of False Marking)
Any person who violates Article 224 shall be punished by imprisonment not
exceeding three years or by a fine not exceeding 20 million won.
Article 229 (Offense of Frauds)
Any person who has obtained a patent, the registration of an extension of a patent
term, or a trial decision by means of a fraudulent or any other unjust act shall be
punished by imprisonment not exceeding three years or by a fine not exceeding 20
million won.<Amended by Act No. 5329, Apr. 10, 1997; Act No. 6411, Feb. 3, 2001; Act No. 7871,
Mar. 3, 2006>
Article 229-2 (Offences Violating Order of Secrecy) (1) Any person who has violated
the order of secrecy under Article 224-3 (1) in the Republic of Korea or in a foreign
country without any justifiable ground shall be punished by imprisonment not
exceeding five years or by a fine not exceeding 50 million won.
(2) A public action against an offence under paragraph (1) shall be instituted only if
a complaint thereof is filed by a person who has requested the order of secrecy.
[This Article Newly Inserted by Act No. 11117, Dec. 2, 2011]
Article 230 (Joint Penal Provisions)
If a representative of a juristic person, or an agent, an employee or any other
employed person of a juristic person or individual has committed an offense under
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Articles 225 (1), 228 or 229 with respect to the duties of the juristic person or
individual, not only shall the offender be punished, but also the juristic person shall
be punished by a fine under any of the following subparagraphs and the individual
shall be punished by a fine referred to in the relevant provisions: Provided, That this
shall not apply to cases where the juristic person or individual has not been negligent
in giving due attention and supervision concerning the relevant duties to prevent
such offense:<Amended by Act No. 9381, Jan. 30, 2009>
1. Cases referred to in Article 225 (1): A fine not exceeding 300 million won;
2. Cases referred to in Article 228 or 229: A fine not exceeding 60 million won.
[This Article Wholly Amended by Act No. 9249, Dec. 26, 2008]
Article 231 (Confiscation, etc.) (1) Any article that is the subject of an infringing act
under Article 225 (1), or any article arising out of such act, shall be confiscated or,
upon request of the injured party, a judgment shall be rendered to the effect that
such article shall be delivered to the injured party. <Amended by Act No. 5329, Apr.
10, 1997>
(2) Where the article is delivered to the injured party under paragraph (1), the
person may claim compensation for losses in excess of the value of the article.
Article 232 (Fines for Negligence) (1) Any person falling under any of the following
subparagraphs shall be punished by a fine for negligence not exceeding 500,000
won: <Amended by Act No. 4892, Jan. 5, 1995; Act No. 6626, Jan. 26, 2002; Act
No. 7871, Mar. 3, 2006>
1. Where a person who has taken an oath under Articles 299 (2) and 367 of the
Civil Procedure Act has made a false statement before the Intellectual Property
Tribunal;
2. Where a person was ordered by the Intellectual Property Tribunal to submit or
show documents or other materials with respect to taking evidence or to the
preservation of evidence, and has failed to comply with the order without justifiable
grounds;
3. Deleted;<by Act No. 7871, Mar. 3, 2006>
4. Where a person was summoned by the Intellectual Property Tribunal as a
witness, expert witness or interpreter and has failed to comply with the subpoena,
or has refused to take an oath, to make a statement, to testify, to give an expert
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opinion or to interpret, without justifiable grounds.
(2) Fines for negligence referred to in paragraph (1) shall be imposed and collected
by the Commissioner of the Korean Intellectual Property Office, as prescribed by
Presidential Decree.
(3) Deleted. <by Act No. 11117, Dec. 2, 2011>
(4) Deleted. <by Act No. 11117, Dec. 2, 2011>
(5) Deleted. <by Act No. 11117, Dec. 2, 2011>
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,
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,
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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 Return of Patent Fees, etc.) The
return of patent fees and official fees paid by mistake before this Act enters into
force, shall be governed by the previous provisions.
(3) (Applicability to Return of Patent Fees) The amended provisions of Article 84
(1) 2 and 3 concerning the return 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.
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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 the Intellectual Property Tribunal and to
have been pending therein.
(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 as
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 as 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 previous provisions as at the time this Act
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enters into force, the same shall not apply.
(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 previous 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 as 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 Intellectual Property Tribunal.
(2) The Commissioner of the Korean Industrial Property Office shall transfer
documents on a pending case as 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.
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)
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(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.
(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.
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(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 of the amended Patent Act, Act
No. 4892 shall enter into force on March 1, 1998.
Article 2 (Special Cases on 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
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 as if it were 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.
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(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 on 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 for publicity of 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 for publicity of 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 for publicity of
application has been served before this Act enters into force or any application for a
patent for which has been applied as the same invention as an invention or a device
described in the specification or drawing appended initially to the patent application
after the date of application of a utility model registration application shall,
notwithstanding the amended provisions of Article 29 (3), be governed by the
previous provisions.
Article 4 (Transitional Measures on Penal Provisions)
The application of penal 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
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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.
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.
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.)
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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;
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.
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(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.
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
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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.
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
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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.
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 to cancel a patent or a trial decision to invalidate a patent or the registration
of an extension of the term of a patent right 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 right whose establishment 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 to be paid 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 previous provisions shall apply with respect to the examination of a patent
application filed under the previous provisions as at the time this Act enters into
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force, and the patent registration, patent right, 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 previous provisions shall apply with respect to a patent objection against a
patent right whose establishment 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.)
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.
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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)
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.)
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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)
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
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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)
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.
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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.
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.
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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 to the patent applications filed on or after
the date this Act enters into force.
Article 3 (Applicability to Divisional Applications)
The amended provisions of Article 52 (4) shall apply to the 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 to the 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 where a prior notice is given
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 applications filed pursuant to the previous provisions before
this Act enters into force shall be governed by such previous provisions.
ADDENDA <No. 11690, 23. Mar, 2013>
법제처 139 국가법령정보센터
「PATENT ACT」
Article 1 (Enforcement Date)
(1) This Act shall enter into force on the date of its promulgation.
(2) Omitted.
Articles 2 through 7 Omitted.
법제처 140 국가법령정보센터