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Over View
After a patent application is filed with the KIPO, a patent right is granted through various steps. The Korean Patent system is characterized by:
 
01 First-to-File Rule;
02 Publication of Unexamined Application;
03 Request for Examination; and
04 Post-grant Opposition System

The procedures for registering a utility model are same as that of patent except for some notification periods.


Filing an Application
01 Applicant
Either the inventor of an invention or his assignee can file a patent application for the invention with KIPO. The applicant may be either a natural person or a juristic person.
02 Documents Required
A person who desires to obtain a patent must submit to the Commissioner of KIPO the following documents:
 
an application stating the name and address of the inventor and the applicant (including the name of a representative, if applicable, the date of submission, the title of the invention, and priority data (if the right of priority is claimed);
a specification setting forth the following matters: the title of the invention; a brief description of drawings (if any); a detailed description of the invention; and claim(s);
drawing(s), if any;
an abstract;
the priority document which is a certified copy of the priority application together with its Korean translation if the right of priority is claimed; and
a power of attorney, if necessary.
03 Claim of Priority
In order to enjoy the priority right, an application should be filed in the KIPO within 1 year from the filing date of the priority application(priority date). The priority document above mentioned may be submitted within one year and four months from the priority date. If the priority document is not submitted within that period of time, the claim of priority will be considered not to have been claimed.

Formality Examination
When a patent application is submitted to KIPO, it is checked to ensure that all requirements necessary to accord the application a filing date have been satisfied. Under the Article 11(1) of the Enforcement Regulation of the Patent Act, Falling in any of the following instances the application will be returned to the submitter without any application number being assigned thereto and will be treated as if it had not been submitted:
 
01 where the kind of the application is not clear;
02 where the name or address of a person (or juristic person) who is initiating the application procedure (i.e. the applicant) is not described;
03 where the application is not written in Korean;
04 where the application is not accompanied by the specification/claims or drawings (only for inventions directed to articles); or
05 where the application is submitted, by a person who has no address or place of business in the Republic of Korea, without using an agent in the Republic of Korea.

Once the application has been satisfied with the requirements, KIPO assigns an application number and examines as to whether or not other formality requirements under the Patent Act have been met. If KIPO discovers that a document or information is missing, such as power of attorney or the name of the representative of the juristic person, it will issue a notice of amendment requesting the applicant to supplement the missing data, within the specified time limit. The applicant may request an extension of the designated time period.

If the applicant does not comply with such a request until the time limit, the patent application will be considered not to have been filed.


Substantial Examination
After a patent application is filed with the KIPO, a patent right is granted through various steps. The Korean Patent system is characterized by:
 
01 Request for Examination
A patent application will be taken up for examination only if a request for examination is made either by the applicant or by any interested party within 5 years from the filing date of the application. If no request for examination is made within this five-year period, the patent application is deemed to have been withdrawn. Once a request for examination has been duly filed, it cannot be withdrawn. A patent application is taken up for examination in the order of filing the request for examination therefore.
02 Requirement for Registration
For a patent to be registered under the Patent Law, it should meet the following requirements;
 
It should fall under the definition of invention under the Patent Law
It should have Novelty, Industrial Applicability, and Inventive Step
It should not fall into any of the categories of unregistable patent prescribed in Article 38 of Patent Act.

Rejection
If a examiner finds a ground for rejection of a patent application, a notice of preliminary rejection will be issued; and the applicant will be given an opportunity to submit a response to the preliminary rejection within the time limit designated by the examiner. Such time limit is extendable to the request for an extension by the applicant.

In responding to the preliminary rejection, the applicant may file an argument with or without an amendment to the specification and/or claims. If the examiner determines that the argument is without merit and the ground for rejection has not been overcome, he will issue a notice of final rejection of the patent application.
 
Registration
When a patent applicant receives a notice of decision to grant a patent he should pay, as a registration fee, the first 3 years' annuities within 3 months from the date of receipt of such notice.

In case he fails to pay the registration fee within the three-month period the registration can still be made by paying twice the usual fee within 6 months after the expiration of the three-month period. Therefore, if the registration fee is not paid within 9 months from the date of receipt of a notice of decision to grant a patent, the patent application will be deemed to have been abandoned.
 
Publication and Post-grant Opposition
In order to ensure the prompt granting of a right, the Pre-grant Opposition System was abolished and the Post-grant Opposition System has been implemented since July 1, 1997.

Where the examiners finds no grounds for refusal of a patent application, KIPO publishes the patent registration after the patent applicant pays the registration fee. Once a patent has been published in the Patent Registration Gazette, any person may file an opposition against the registration of the patent within 3 months from the publication date.
 
Appeal and Trial
The applicant may lodge an appeal against the examiner's final rejection within 30 days from the date of receipt of the notice of final rejection. Any party which doubts the validity of a right may request a trial for invalidation of patent.

Such appeal and trial procedure are conducted in the Industrial Property Tribunal which was established by merging the former Trial Board and Appeal Board as of March 1, 1998 in KIPO.

The Industrial Property Tribunal's decision may be appealed to the Patent Court which was also established as an appellate level court and has been operating from March 1, 1998.

An appeal against the Patent Court's decision may be reviewed by the Supreme Court.
 
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