Korean Patent System vs. US and European Patent Systems
Pine IP
February 5, 2025
In today’s global innovation landscape, patent practitioners must often navigate multiple jurisdictions. Understanding the similarities and differences among the Korean, US, and European (EP) patent systems is critical for foreign patent attorneys and IP professionals seeking effective international protection. While Korea’s patent framework shares fundamental principles—namely novelty, inventive step, and industrial applicability—with the U.S. and Europe, there are important procedural and substantive distinctions. This overview compares key aspects of Korean IP law and practice with its U.S. and European counterparts, covering topics from filing and examination to patentability criteria and enforcement. It also offers practical insights for foreign applicants aiming to secure and defend their patents in Korea.
Administered by the Korean Intellectual Property Office (KIPO) under the Korean Patent Act, the Korean patent system operates on a first-to-file basis, aligning with most jurisdictions worldwide and the post–America Invents Act system in the U.S. A granted Korean patent confers a 20-year exclusive right from the filing date once it is registered. To be patentable, an invention must meet the criteria of industrial applicability, novelty, and inventive step.
Notably, Korea excludes certain subject matter on grounds similar to Europe. For example, methods of medical treatment are not considered industrially applicable and hence are not patentable. Medical devices and pharmaceuticals, however, remain eligible. This differs from U.S. practice, where some medical methods can be patented. Korea also limits software protection unless the software-related invention demonstrates a concrete technical character or effect—an approach reminiscent of Europe’s treatment of computer-implemented inventions.
Korea is a party to international treaties such as the Patent Cooperation Treaty (PCT) and the TRIPS Agreement, ensuring substantial alignment with global standards. Nevertheless, local rules and definitions sometimes diverge from those in the U.S. or Europe, underscoring the importance of tailoring patent strategies to each jurisdiction.
Patent applications in Korea must ultimately be submitted in Korean, although they can initially be filed in English if followed by a Korean translation within 14 months of the earliest priority date. By contrast, the U.S. requires filings in English (or a translation upon filing), and the European Patent Office (EPO) accepts English, French, or German (or other languages with a corresponding translation). Preparing high-quality translations for Korean filings is critical to avoid discrepancies that may arise from inaccurate terminology.
All three jurisdictions require similar documentation—specification, claims, abstract, drawings, and priority documents where applicable. However, certain formalities, such as power of attorney requirements, may vary, so coordinating with local counsel is essential.
Korea, the U.S., and Europe all employ first-to-file systems for determining patent rights. One notable difference lies in grace periods for prior disclosures. Korea offers a one-year grace period, much like the U.S., exempting inventors’ own disclosures (or those derived from the inventor) from destroying novelty if the disclosure occurred within 12 months before the filing date. This grace period is limited in scope—it does not broadly cover third-party publications unless they resulted from unauthorized disclosures. Europe, on the other hand, generally does not provide a broad grace period. Thus, applicants should be wary of making public disclosures before filing in Europe, even if grace period provisions in Korea and the U.S. might offer temporary relief.
A distinctive procedural feature in Korea is the need to request examination proactively within three years from the filing date. If no request is filed by then, the application lapses. This deferred examination system can be strategically beneficial, allowing applicants to delay examination costs or await market developments. In Europe, a request for examination must typically be made sooner (within six months after the publication of the search report for direct European applications), while in the U.S., examination generally begins automatically once fees are paid at filing.
After an applicant requests examination in Korea, examiners review both formal and substantive aspects. On average, the time to grant in Korea is around two to three years—comparable to or slightly faster than in the U.S. or Europe. Korea also participates in the Patent Prosecution Highway (PPH) to expedite examination if at least one claim has been allowed in another participating jurisdiction.
Applicants can respond to office actions and amend claims in Korea, but the country’s rules on amendments and divisional practice can be more restrictive than in the U.S., where broad continuation and RCE practice is permissible. Korea does not allow adding entirely new claims after a final rejection, and while divisional applications are permitted, they must be filed before grant or in specific scenarios after an appeal. These factors emphasize the importance of a well-prepared claim set at the outset.
As in most jurisdictions, Korean patent applications are published 18 months after filing. Once the examination is completed and a decision to grant is issued, the applicant must pay registration fees to finalize the patent grant. Korea reintroduced a post-grant opposition system in 2017, allowing any party to challenge a newly granted patent within six months of grant publication. In contrast, U.S. law offers post-grant review and inter partes review, and the European opposition process allows nine months for challenges. If no opposition is filed (or if an opposition fails), the patent remains in force unless subsequently invalidated through separate proceedings.
Korean official fees are influenced significantly by the number of claims. There is no “base” number of free claims included in the filing or examination fees; each additional claim increases costs. Maintenance fees also scale with claim count. By comparison, the U.S. filing fee covers a certain number of claims before excess fees apply, and the EPO likewise includes some claims in the base fee. Thus, applicants are often advised to keep the number of Korean claims at a strategically manageable level, possibly using multiple dependent claims to cover variations. Attorney fees in Korea tend to be competitively priced, so overall costs can remain moderate if claim counts are kept under control.
Korea, the U.S., and Europe all require absolute novelty, meaning any prior art made public before the filing date can destroy novelty. Korea and the U.S. offer limited grace periods for inventor-originated disclosures, whereas Europe’s grace period is much narrower. As a result, applicants should generally file before any public disclosure, keeping in mind that specific exceptions in Korea or the U.S. may not apply in Europe.
While all three jurisdictions require that an invention not be obvious to a person skilled in the art, each has its own methodology. The EPO’s “problem-solution approach” focuses on technical effects. The U.S. uses the Graham factors and the KSR guidelines, often combining multiple references to argue obviousness. Korea’s approach, similar to that in Japan and partly to Europe, looks for whether the invention could have been readily derived from the prior art. Demonstrating an unexpected effect or superiority can significantly bolster inventive step arguments in Korea. Overall, the essence of inventive step is consistent among these systems, but local differences in how examiners apply the standard should be recognized.
All three require that an invention be susceptible to industrial application or have a practical utility. This requirement is generally easy to meet unless the invention falls within excluded subject matter. Methods of medical treatment, for instance, are non-patentable in Korea (and under the European Patent Convention), although the U.S. does allow such claims. Software or business methods must demonstrate a concrete technical effect in Korea and Europe, whereas U.S. law addresses these issues primarily under subject-matter eligibility. Thus, drafting claims to emphasize a technical implementation can be particularly important for software inventions intended for filing in Korea or Europe.
Korea, like Germany and Japan, has a bifurcated system where infringement proceedings and patent validity challenges take place in separate forums. Infringement suits are heard by civil courts with specialized IP panels, while invalidation trials are handled by an administrative tribunal within the patent office system (with appeals to the Patent Court). In the U.S., both validity and infringement are typically litigated in a single federal court proceeding, often with a jury. European practices vary by country, with some following a bifurcated approach and others combining validity and infringement.
Korean patent infringement lawsuits usually proceed before panels of professional judges aided by technical advisors, with limited discovery compared to U.S. litigation. This structure can lead to relatively faster and less costly proceedings. As in many civil law countries, jury trials are uncommon. In Europe, enforcement approaches differ among jurisdictions, but limited discovery and judge-driven procedures are also common.
Courts in Korea generally grant injunctions once infringement is established, with fewer obstacles than in the U.S. post–eBay era. Korea has also introduced the possibility of punitive damages (up to triple actual damages) for willful infringement, aligning in spirit with U.S. enhanced damages. Historically, Korean damage awards were modest, partly due to limited discovery, but the new punitive framework may increase compensation over time. Moreover, willful infringement in Korea can, in rare cases, lead to criminal penalties—a stark contrast to most other countries, where patent infringement is a civil matter only.
Foreign patentees enforcing Korean patents should anticipate that alleged infringers may file invalidation actions. Because the courts will typically stay or closely coordinate with the separate invalidation proceeding, it is crucial to defend the patent’s validity through thorough prosecution records and strong claim drafting. The usual lack of broad discovery places additional emphasis on gathering infringement evidence in advance. Injunctions can be a powerful remedy if the patent is upheld, and the threat of punitive damages or even criminal sanctions can encourage settlements.
The Korean patent system combines globally recognized principles with unique local practices, offering streamlined procedures, post-grant opposition, and robust enforcement tools. By appreciating the key distinctions from the U.S. and European regimes—such as deferred examination requests, careful claim translation requirements, narrower amendment opportunities, and a bifurcated litigation framework—foreign applicants can tailor their strategies for maximum effectiveness. With prudent planning, close collaboration with Korean counsel, and a well-prepared approach to both prosecution and enforcement, securing strong, enforceable patent rights in Korea becomes a manageable and rewarding endeavor.
