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I. Korean IP System

 

II. Japanese IP System

Patent


In order to obtain a Patent in Korea, an applicant shall submit (a) an application, (b) a specification containing claim(s), (c) drawing(s), if any, (d) an abstract, and (e) a power of attorney, if necessary. In case of claiming the priority right, the nation of prior application and the filing date of the prior application shall be set forth in the application. The priority documents may be submitted within 16 months from the earliest priority date together with its Korean translation. A Korean patent application shall be publish after 18 months from the filing date or, if priority has been claimed, as from the date of the earliest priority date.


The KIPO shall examine only the application that has filed a request for substantial examination within 5 years from the filing date of the application. If no request for substantial examination has been filed by the end of the above period, the application shall be deemed to be withdrawn.


If the Examiner does not find any reasons of rejection for the application, he/she will issue a notice of decision to grant a patent. The applicant shall pay a patent fee within 3 months from the receipt of the notice of decision to grant a patent in principle. However, the applicant may submit a patent fee within 6 months from the expiry of the period with a double fee. After the patent fee is paid within the above period, the patent is registered and then is published. Unless the patent fee is paid within the above period, the application shall be deemed to be withdrawn.


If the Examiner is of the opinion that the application does not meet any of the requirements of the Korean Patent Act, he/she will issue a notice of preliminary rejection and give the applicant an opportunity to respond to the notice within usual 2 months that can be extended. Applicant may file an argument or an amendment in order to respond to the notice. If the Examiner is of the opinion that the response has not met the requirements of the Korean Patent Act, he/she will issue a notice of final rejection. The applicant may raise an appeal against the final rejection to Korean Industrial Property Tribunal (IPT) within 30 days from the receipt of the notice of the final rejection.



Utility Model


The procedures for registering a utility model are almost the same as those of in case of patents, except for some notification periods. The Utility Model system in Korea has changed from a no substantial examination system to a post-examination system such as a patent system since July 1, 2007.. Only a device that relates to the shape or structure of an article or a combination of articles are statutory subject matter under Korean Utility Model system. Therefore, a method or process or chemical compound or composition is not registered, and an applicant willing to register a utility model must submit drawing(s) together with an application, a specification containing claim(s), and an abstract.


The KIPO shall examine only that application which has also filed a request for substantial examination within 3 years from the original filing date of the application. If no request for substantial examination has been filed by the end of the above period, the application shall be deemed to be withdrawn.



Design


Korean Design Act has adopted a Non-Substantial Examination system (NSES) in some articles classified into Group B1, C1, F3, F4 and M1, and a Substantial Examination System (SES) in other articles. A design applicant must submit to KIPO (a) an application setting forth the name of the article and the priority date (if the priority right is claimed), (b) drawings of the design, (c) the description of the design, and (c) a power of attorney, if necessary. All design applications are checked whether the application meets the formality requirements.


Under the only SES system, the design application may be published upon the applicant files a request for publication. If the design application under the SES system meets the formality requirements, the Examiner examines substantially the application without the request for examination such as patent. A request for expedited examination can be made for the design application. Under the SES system, it is required that one application describes only one article.


Since, the Examiner does not consider the substantial features such as novelty under the NSES system, the design application of the NSES may be registered within 2 or 3 months from the filing date of the application. Further, under the NSES system, it is not permitted to request for publication. Unlike the SES system, it is possible to contain multiple articles up to 20 articles that fall within single class in one application under the NSES system.


There is no opposition system under the SES system. However, any one may an opposition against the registered design under the NSES system within 3 months from the publication date.



Trademark


Any person intending to register a trademark may submit (a) an application containing the trademark for registering, Nice classifications and the designated goods, (b) specimens of the trademark, (c) priority right, if any, and (d) a power of attorney. Since it is not prerequisite to use the trademark for registering the trademark in Korea, a trademark that has not been used can be registered. The priority document must be submitted within 3 months from the filing date of the trademark application.


After the Commissioner of the KIPO examines formality requirements of the trademark application, the Examiner does a substantial examination of the application without any request.


If the Examiner is of the opinion that the trademark application does not meets the requirement under the Korean Trademark Act, he/she issues a notice of preliminary rejection. The applicant may raise a response against the notice within 1 month (in case of national applicant) or 2 months (in case of foreign applicant). The period for responding the notice of preliminary rejection may be extended up to 2 times with a monthly basis.


If the Examiner is of the opinion that the trademark application meets the requirements under the Korean Trademark Act, he/she issues a notice to publish decision prior to issuing a notice to register decision and the trademark application will be published. Any person may raise an opposition against the published trademark application within 30 days from the publication date with grounds and evidences supporting the grounds. In other words, the Korean Trademark Act adopts a pre-Grant opposition system unlike the patent system.


Once raising the opposition against the trademark application, the Examiner considers the grounds or evidences. If the Examiner is of the opinion that the grounds for the opposition are adequate, he/she issues a notice of preliminary rejection to the application.


The Examiner issues a notice to register decision if there is no opposition within the period above or the opposition is not adequate. The applicant shall pay a registration fee within 2 months from the receipt of the notice to register decision.


Unlike other industrial rights such as a patent, a utility model, and a design, the trademark registration may be renewed every 10 year.



Legal Proceedings


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An applicant who has received a notice of final rejection against the application or a patentee who has received a notice of revocation decision may raise a request of appeal against the notice to the Korean Industrial Property Tribunal (IPT) within 30 days from the receipt of the notice. The IPT designates three Tribunal Examiners upon receipt of the request, and the presiding Tribunal Examiner examines the formalities to the request.


In case of the appeal against the final rejection, if the applicant files an amendment to the specification, claim(s), or drawing(s) in the patent application within 30 days from the filing date of the request of appeal against the final rejection, the Examiner who made the final rejection will re-examine the specification before the Tribunal Examiners considers the request of appeal. If the Examiner is of the opinion that the application is allowed through such an amendment, he/she issues a decision to grant a patent. On the other hand, if the Examiner is of the opinion that the amended patent application does not meet the requirements, he/she transmits the case to the IPT, and then common appeal procedure proceeds.


The Tribunal Examiners considers the grounds or evidences submitted by the applicant or the patentee and make a ruling or decision. The applicant or the patentee may raise an appeal against the ruling or decision from the IPT to the Korean Patent Court within 30 days from the receipt of a certified copy of the ruling or decision. Also, the applicant or the patent may raise an appeal against the judgment from the Patent Court to the Supreme Court within 14 days from the receipt of the judgment.


Also, the patentee may raise an appeal for correction against the registered specification, claim(s), or drawings. However, the appeal for correction is allowed only (a) to narrow a claim, (b) to correct clerical errors, or (c) to clarify an ambiguous description.


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An applicant who has received a notice of final rejection against the application or a patentee who An interested party may raise a trial against the patent, utility model, trademark or design in order to invalidate the patent exc., to invalidate the correction, to cancel the trademark, to confirm the scope of the invention, device, trademark, and design and the like.


Once the trial against the patent and like is raised, the IPT designates three Tribunal Examiners upon receipt of the request, and the presiding Tribunal Examiner examines the formalities to the request like the Ex Parte Cases above.


If the request of trial meets the formalities under the Korean Patent Act, the presiding Tribunal Examiner transmits a copy of the request to the opponent, that is the patentee, the infringer and the like and gives an opportunity to respond the request the opponent. If the opponent submits a response, the presiding Tribunal Examiner transmits a copy of the response to the demandant.


The Tribunal Examiners considers the grounds or evidences submitted by the demandant or the opponent and make a ruling or decision. The demandant or the opponent may raise an appeal against the ruling or decision from the IPT to the Korean Patent Court within 30 days from the receipt of a certified copy of the ruling or decision. Also, the applicant or the patent may raise an appeal against the judgment from the Patent Court to the Supreme Court within 14 days from the receipt of the judgment.