The Korean Intellectual Property Office (KIPO) administers a sophisticated and comprehensive system for the protection of patents and utility models. This guide provides an in-depth overview of what patents and utility models are within the Korean system, and the processes and procedures involved in obtaining these rights, aimed at equipping foreign people with the knowledge required to navigate the Korean IP landscape effectively.
A patent in Korea grants the holder exclusive rights to an invention, which could be a product or a process that offers a new technical solution or a significant improvement to existing technology. The key characteristics of a patent include:
Patents provide protection for up to 20 years from the filing date, giving the patent holder the right to exclude others from making, using, selling, or importing the patented invention without permission.
Utility models in Korea are similar to patents but typically cover inventions that are considered less innovative than those qualifying for a patent. These might include small technical improvements or adaptations of existing products. The main features of utility models are:
Utility models are protected for up to 10 years from the filing date, offering a shorter term of protection compared to patents but still providing valuable IP rights for incremental innovations.
After a patent or utility model application is filed with KIPO, the rights are granted through a structured process characterized by:
The procedure for registering a utility model closely mirrors that of a patent, with some differences in notification periods.
A patent application can be filed by either the inventor or the assignee. Applicants can be natural persons or juristic entities.
To obtain a patent, the following documents must be submitted to KIPO:
To enjoy priority rights, the application must be filed within one year from the priority application's filing date. The priority document can be submitted within one year and four months from the priority date. Failure to submit the priority document within this period nullifies the priority claim.
Upon submission, KIPO checks the application to ensure all requirements for assigning a filing date are met. An application will be returned without an application number if it:
If the application meets these requirements, KIPO assigns an application number and examines compliance with other formal requirements. Missing documents or information can result in a notice of amendment, giving the applicant a specified period to supplement the application. Failure to comply within this period results in nullification.
A patent application will be examined only if a request for examination is made by the applicant or an interested party within five years (three years for utility models) from the filing date. If no request is made within this period, the application is deemed withdrawn. Once requested, the examination cannot be withdrawn and follows the order of request submission.
Applications are automatically published in the "Patent Laid-open Gazette" 18 months after the filing date or priority date. Early publication can be requested by the applicant to protect the application from infringement sooner. Once laid-open, the application documents are available for public inspection, and relevant information can be submitted to KIPO.
A patent must meet the following criteria:
If an examiner finds grounds for rejection, a preliminary rejection notice is issued, giving the applicant an opportunity to respond. If the grounds for rejection are not overcome, a final rejection is issued. If no grounds are found, a patent right is granted.
Upon receiving a notice of decision to grant a patent, the applicant must pay the first three years' annuities within three months. Failure to pay within this period allows for an additional six-month period with a doubled fee. Non-payment within nine months results in the application being deemed abandoned.
After payment of the registration fee, KIPO publishes the patent registration. Any person can file a revocation against the registration within six months of publication.
If grounds for refusal are found under Article 62, a notice is issued, and the applicant can submit a written opinion or amendment.
If grounds for rejection persist after reexamination, the application is determined to be rejected. Otherwise, the application is accepted for registration.
If rejected, the applicant can appeal to the Intellectual Property Trial and Appeal Board (IPTAB). The IPTAB can either uphold or overturn the examiner's decision. Further appeals can be made to the Patent Court and subsequently to the Supreme Court if there are grounds for legal or regulatory violations.
Understanding the Korean procedures for patents and utility models is crucial for foreigner. The Korean IP system is well-structured, offering robust protection for intellectual property. By familiarizing themselves with these processes, people can ensure effective navigation and strategic advantage for their clients' IP rights.
