INTRODUCTION
Details of Enactment and Amendment
¡Ü Enactment: This Act was enacted on December 31, 1961 as Act No. 950, in order to contribute to industrial development through promotion of technology development, by protecting and encouraging inventions and contriving their utilization.
¡Ü Amendment: This Act was wholly amended in 1973 and 1990, and it has arrived at its present form as the result of being amended ten times after being wholly amended in 1990. The latest amendment was on December 31, 2001.
Main Contents
¡Ü An invention for which a patent may be granted shall be a highly advanced creation of any technical idea applying any law of nature, and the patent may be granted for an invention capable of industrial application when it was not publicly known or worked in the country or described in a publication distributed inside or outside of Korea or jointly available via the Internet managed by the state or a local government, prior to the filing of a patent application. However, a patent may be granted if the public knowledge came about because the inventor has tested or published the invention, or because he has published it via the Internet managed by the state or a local government or in academic organizations.
¡Ü Patent may be granted also for an invention of an asexually and palingenetically reproducing varietal plant.
¡Ü If two or more persons file patent applications for the same invention, the applicant who files first may obtain the patent, and if they are filed on the same day, only one applicant designated by an agreement of all applicants may obtain the patent for the invention. If no agreement is reached, no applicant may obtain the patent for the invention.
¡Ü Patentable rights may be transferred.
¡Ü If an invention made by an employee, etc. in connection with his duties belongs by its nature to the scope of the activities of the employer, etc. and if the employee, etc. obtains a patent for the invention which belongs to the present or past duties of the employee, etc. the employer, etc. shall have an ordinary license on such patent.
¡Ü A patent right shall be effective to the day on which twenty years have passed since filing of the patent application.
¡Ü The scope of the protection of a patented invention shall be determined by the details described within the scope of the request for a patent, and the patentee shall have an exclusive right to embody the patented invention and may give another person an exclusive or ordinary license to embody the patented invention.
¡Ü The Korean Industrial Property Tribunal shall be established for the purpose of administrating the affairs related to trials and retrials, etc. on patents.
PATENT ACT
Act No. 6582, Dec. 31, 2001
CHAPTER I GENERAL PROVISIONS
¡á Article 1 (Purpose)
The purpose of this Act shall be to encourage, protect and utilize inventions, thereby improving and developing technology, and to contribute to the development of industry.
¡á Article 2 (Definitions)
The definitions of terms used in this Act shall be as follows:
1. The term "invention" means the highly advanced creation of technical ideas utilizing rules of nature;
2. The term "patented invention" means an invention for which a patent has been granted; and
3. The term "working" means any one of the following acts:
(a) In the case 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) the product;
(b) In the case of an invention of a process, acts of using the process; and
(c) In the case 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 subparagraph (b).
¡á 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 provision 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 patent-related opposition, trial, or retrial procedures initiated by another party.
(3) Patent-related procedures, initiated by a person who lacks the requisite power of legal representation or competence or authority necessary to initiate any such procedures, shall have retroactive effect if said procedures are ratified by a person having such power of representation or competence.
¡á Article 4 (Associations, etc. Other than Legal Entity)
A representative or an administrator, who has been so designated by an association or a foundation which is not a legal entity, may make a request for examination of a patent application, file an opposition to the grant of a patent, or appear as a plaintiff or defendant in a trial or a retrial in its association or foundation name.
¡á Article 5 (Patent Administrator for Nonresidents)
(1) A person who has neither an address nor a place of business in the Republic of Korea (hereinafter referred to as a "nonresident") may not, except in cases where a nonresident (or a representative thereof if a legal entity) 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 is represented by an agent with respect to his patent, who has an address or a place of business in the Republic of Korea (hereinafter referred to as a "patent administrator").
(2) The patent administrator shall, within the scope of powers conferred on him, 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.
(3) and (4) <by Act No. 6411, Feb. 3, 2001>
¡á Article 6 (Scope of Powers of Attorney)
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, abandon or withdraw an application for a patent, withdraw an application for registration of an extension of the term of a patent right, abandon a patent right, withdraw a petition, withdraw a request for a motion, make or withdraw a priority claim under Article 55 (1), request for a trial under Article 132-3, or appoint a sub-representative.
¡á Article 7 (Proof of Powers of Attorney)
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 power of attorney.
¡á Article 8 (Non-extinguishment of Powers of Attorney)
A power of attorney of an agent of a person initiating a patent-related procedure shall not be extinguished upon the death or loss of legal capacity of the principal, the extinguishment of a legal entity of the principal due to a merger, the termination of the duty of trust of the principal, the death or loss of legal capacity of the legal representative, or the modification or extinguishment of his power of attorney.
¡á Article 9 (Independence of Representation)
Where two or more agents 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.
¡á Article 10 (Replacement of Agents, etc.)
(1) If the Commissioner of the Korean Intellectual Property Office or the presiding trial examiner considers that a person initiating a patent-related procedure is not qualified to conduct such a procedure or make oral statements, etc. he may order, ex officio, the appointment of an agent to conduct the procedure.
(2) If the Commissioner of the Korean Intellectual Property Office or the presiding trial examiner considers that the agent of a person initiating a patent-related procedure is not qualified to conduct such a procedure or make oral statements, etc. he may order, ex officio, the replacement of the agent.
(3) The Commissioner of the Korean Intellectual Property Office or the presiding trial examiner may, in the case referred to in paragraph (1) or (2) of this Article, order the appointment of a patent attorney to conduct the procedure.
(4) The Commissioner of the Korean Intellectual Property Office or the presiding trial examiner may invalidate any action taken before the Korean Intellectual Property Office or the Industrial Property Tribunal by the person initiating the patent-related procedure referred to in paragraph (1) of this Article or by the agent referred to in paragraph (2), of this Article prior to the appointment or the replacement of the agent, referred to under paragraph (1) or (2), respectively, after the issuance of an order referred to under paragraph (1) or (2).
¡á 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 provision shall not apply where those persons have appointed a common representative and have notified the Korean Intellectual Property Office or the Industrial Property Tribunal thereof:
1. Abandonment or withdrawal of a patent application or withdrawal of an application for registration of an extension of term of a patent right;
2. Withdrawal of a petition; claim or withdrawal of a priority claim under Article 55 (1);
3. Withdrawal of a request; and
4. Request for a trial under Article 132-3.
(2) Where the common representative has been appointed and notified under the provision of paragraph (1), a written proof of the fact that the representative has been appointed shall be presented.
¡á Article 12 (Mutatis Mutandis Application of Provisions of Civil Procedure Act)
Except where there is an express provision relating to agents in this Act, the provisions of Part I, Section 2, Subsection 4 of the Civil Procedure Act shall apply mutatis mutandis to agents under this Act.
¡á Article 13 (Venue of Nonresidents)
If a nonresident has appointed a patent administrator with respect to his patent right or other right relating to a patent, the domicile or place of business of the patent administrator shall be considered to be that of the nonresident. Where there is no such patent administrator, the location of the Korean Intellectual Property Office shall be regarded as the seat of the property under Article 11 of the Civil Procedure Act.
¡á Article 14 (Calculation of Period)
The calculation of any period under this Act or orders issued thereunder shall conform to the following criteria:
1. The first day of the period shall not be counted unless the period starts at midnight;
2. If the period is expressed in months or years, it shall be counted according to the calendar;
3. If 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 if there is no corresponding day in the last month, the period shall expire on the last day of that month; and
4. If the last day of a period for executing a patent-related procedure falls under an official holiday, (including Labor Day, designated by the Designation of Workers' Day Act), said period shall expire on the working day following the official holiday.
¡á Article 15 (Extension of Period, etc.)
(1) The Commissioner of the Korean Intellectual Property Office or the President of the Industrial Property Tribunal may extend, for the benefit of a person residing in an area that is remote or difficult to access, the period for submitting an amendment of grounds for opposition according to Article 70 (1) or the period for demanding a trial under Article 132-3 upon a request or ex officio.
(2) When the Commissioner of the Korean Intellectual Property Office, the President of the Industrial Property Tribunal, a presiding trial examiner or an examiner has designated a period of a patent-related procedure to be initiated under this Act, he may extend it upon a request or ex officio.
(3) When a presiding trial examiner or an examiner has designated a date for initiating a patent-related procedure under this Act, he may change the date upon a request or ex officio.
¡á 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 Industrial Property Tribunal may invalidate the procedure relating to the patent: Provided, That, 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 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 the delay of the time is deemed to have been caused by reasons not imputable to a person who received an invitation to amend, the Commissioner of the Korean Intellectual Property Office or the President of the Intellectual property Tribunal may revoke a disposition of invalidation at the request of a person who received an invitation to amend within fourteen days from the date on which the reasons for the delay ceases to exist: Provided, That this provision shall not apply where one year has elapsed after the designated period expires.
¡á Article 17 (Subsequent Completion of Procedure)
If a person who initiated a patent-related procedure has failed to observe the period for requesting a trial under Article 132-1 or the period for demanding a retrial under Article 180 (1) due to a cause not imputable to himself, he may subsequently complete the procedure that he failed to conduct within fourteen days after said reason ceases to exist: Provided, That this provision shall not apply in a case where one year has elapsed after said period expires.
¡á Article 18 (Succession of Procedural Effects)
The effects of a procedure taken in relation to a patent or other right relating to a patent shall extend to the successor in title.
¡á Article 19 (Continuation of Procedure by Successor)
Where a patent right or other right relating to a patent is transferred while a procedure relating to the patent is pending in the Korean Intellectual Property Office or the Intellectual Property Tribunal, the Commissioner of the Korean Intellectual Property Office or the presiding trial examiner may require the successor in title to continue the procedure relating to the patent.
¡á 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 an agent authorized to conduct the procedure:
1. When the party involved has died;
2. When the legal entity involved has ceased to exist by reason of merger;
3. When the party involved has lost the ability to conduct the procedure;
4. When the legal agent of the party involved has died or lost his power;
5. When the commission of a trustee given by the trust of the party involved has terminated; or
6. Where the representative as provided in the provisions of Article 11 (1) has died or lost his qualification.
¡á Article 21 (Resumption of Interrupted Procedure)
When a procedure pending in the Korean Intellectual Property Office or the Intellectual Property Tribunal has been interrupted in the manner referred to in Article 20, any person who falls under any of the following subparagraphs shall resume the procedure:
1. In the case of subparagraph 1 of Article 20, the deceased person' successor, administrator of inheritance, or other person authorized to pursue the procedure under other Acts: Provided, That the deceased person's successor may not resume the procedure until such time as his right to succession is no longer subject to renunciation;
2. In the case of subparagraph 2 of Article 20, the legal entity established by or existing after the merger;
3. In the cases of subparagraphs 3 and 4 of Article 20, the party whose ability to take the necessary procedure has been restored or any person who becomes the legal agent of the party, respectively;
4. In the case of subparagraph 4 of Article 20, a new trustee; and
5. In the case of subparagraph 5 of Article 20, a new representative or each joint initiator involved.
¡á Article 22 (Request for Continuation)
(1) The request for continuation of a procedure interrupted under Article 20 may be made by an opposing party.
(2) When a request for continuation of a procedure interrupted under Article 20 is made, the Commissioner of the Korean Intellectual Property Office or the presiding trial examiner shall notify the opposite party.
(3) The Commissioner of the Korean Intellectual Property Office or the trial examiner shall, if it has been deemed that there are no grounds for granting the request for continuation of the procedure interrupted under Article 20, dismiss the request by decision after examining the request, ex officio.
(4) The Commissioner of the Korean Intellectual Property Office or the trial examiner shall decide, upon request for continuation, whether to permit resumption of the interrupted procedure after a certified copy of the decision or trial decision was sent.
(5) If a person referred to in Article 21 does not take over the interrupted procedure, the Commissioner of the Korean Intellectual Property Office or the trial examiner shall, ex officio, designate a period within which he shall resume such procedure.
(6) If no request for continuation has been made within the designated period provided in paragraph (5), it is considered that the continuation has been made on the day following the expiration of such designated period.
(7) If the Commissioner of the Korean Intellectual Property Office or the presiding trial examiner deems that the continuation made in accordance with paragraph (6), he shall so notify the parties involved.
¡á Article 23 (Suspension of Procedure)
(1) If the Commissioner of the Korean Intellectual Property Office or the trial examiner is unable to carry out his duties due to a natural disaster or other unavoidable circumstances, the procedure pending in the Korean Intellectual Property Office or the Intellectual Property Tribunal shall be suspended until such impediments cease to exist.
(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 trial examiner may order its suspension by decision.
(3) The Commissioner of the Korean Intellectual Property Office or the trial examiner may cancel the decision issued under paragraph (2).
(4) If a procedure is suspended under paragraph (1) or (2), or a decision is canceled under paragraph (3), the Commissioner of the Korean Intellectual Property Office or the presiding trial examiner shall so notify the parties involved.
¡á 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 of the procedure.
¡á 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 one of the following subparagraphs:
1. 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;
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 the case that the Republic of Korea allows their countries' nationals to enjoy patent rights or other rights relating to a patent; or
3. Where they may enjoy patent rights or other rights relating to a patent according to a treaty or equivalents of a treaty (hereinafter referred to as "treaty").
¡á Article 26 (Effects of Treaty)
Where a treaty contains special provisions relating to patents that are different from those of this Act, such special provisions shall prevail.
¡á Article 27 Deleted <by Act No. 6411, Feb. 3, 2001>
¡á Article 28 (Effective Date of Submitted Documents)
(1) Applications, demands 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 the provisions of 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.
(2) Where applications, demands or other documents 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, provided that such date is proved by a receipt therefor. However, this provision shall not apply in cases where written applications for 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 an "international application") are submitted by mail.
(3) Deleted. <by Act No. 5576, Sep. 23, 1998>
(4) Details concerning the submission of documents with regard to the delay of mail, loss of mail, or interruption of mail service, other than the provisions of paragraphs (1) and (2), shall be prescribed by the Ordinance of the Ministry of Commerce, Industry, and Energy.
¡á Article 28-2 (Entry of Identification Number)
(1) A person provided for by the Ordinance of the Ministry of Commerce, Industry and Energy from among persons who initiate a patent-related procedure (excluding any person to whom an identification number has already been granted under paragraph (2) or (3)), shall apply for the grant of his identification number to the Korean Intellectual Property Office or the Intellectual Property Tribunal.
(2) If any person makes 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 thereof.
(3) If a person who initiates a patent-related procedure under paragraph (1) fails to apply for the grant of an 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 thereof.
(4) If a person to whom an identification number has been granted under paragraph (2) or (3) initiates a patent-related procedure, he shall enter his identification number in any document as prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy. In this case, notwithstanding the provisions of this Act or any order thereunder, a domicile (a place of business if a legal entity) may not be entered in said document.
(5) The provisions of paragraphs (1) through (4) shall apply mutatis mutandis to an agent of a person who initiates a patent-related procedure.
(6) An application for grant of an identification number, the grant and notification thereof or other matters necessary therefor shall be prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy.
¡á Article 28-3 (Procedure for Filing Patent Applications by Means of Electronic Documents)
(1) A person who initiates a patent-related procedure may, pursuant to the methods prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy, convert a written application for a patent or other documents as 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 communication network or on a floppy disk in which they are written.
(2) Electronic documents presented under paragraph (1) shall have the same effect as other documents presented under this Act.
(3) Electronic documents presented through a communication network under paragraph (1) shall, if a presenter thereof confirms a receipt number through a communication network, be deemed to have been received as contents written in a file of a computer system for receipt operated by the Korean Intellectual Property Office or the Intellectual Property Tribunal.
(4) The kinds of documents capable of being presented by means of electronic documents under paragraph (1) and the methods of such presentation or other necessary matters shall be prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy.
¡á Article 28-4 (Report on Use of Electronic Documents and Electronic Signature)
(1) A person who intends to initiate a patent-related procedure by means of electronic documents shall, in advance, 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 electronic signature so that the presenters may be discerned.
(2) Electronic documents presented under Article 28-3 shall be deemed to have been filed by the person who affixes his electronic signature under paragraph (1).
(3) Matters necessary for procedures of report on use of electronic documents and the methods of electronic signature under paragraph (1), shall be prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy.
¡á Article 28-5 (Notification, etc. through Communication Network)
(1) If the Commissioner of the Korean Intellectual Property Office, the President of the Intellectual Property Tribunal, a presiding trial examiner, a trial examiner, a presiding examiner, or an examiner intends to give notification and make transmission (hereinafter referred to as a "notification") of any pertinent documents to a person who reports the use of electronic documents under Article 28-4 (1), he may do so through a communication network.
(2) The notification of any pertinent documents given through a communication network under paragraph (1) shall have the same effect as that given in writing.
(3) The notification 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 said notification, be deemed to reach as contents written in a file of a computer system for transmission operated by the Korean Intellectual Property Office or the Intellectual Property Tribunal.
(4) Matters necessary for the classification and the methods of such notification as given through a communication network under paragraph (1) shall be prescribed by the Ordinance of the Ministry of Commerce, Industry and Energy.
CHAPTER II REQUIREMENTS FOR
PATENTS AND PATENT APPLICATION
¡á Article 29 (Requirements for Patents)
(1) Inventions having Intellectual applicability may be patentable unless they fall under any of the following subparagraphs:
1. Inventions publicly known or worked in the Republic of Korea prior to the filing of the patent application; or
2. Inventions described in a publication distributed in the Republic of Korea or in a foreign country prior to the filing of the patent application or inventions made accessible to the public through electric communication lines as prescribed by the Presidential Decree.
(2) Notwithstanding paragraph (1), where an invention could easily have been 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 each subparagraph of paragraph (1), a patent shall not be granted for such an invention.
(3) Notwithstanding paragraph (1), a patent shall not 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 laid open or published after grant for public inspection after the filing of said patent application, or identical to a utility model application published after grant for public inspection after the filing of said patent application: Provided, That this provision shall not apply in cases where the inventor of the concerned patent application and the inventor of the other patent or utility model application are the same person or where the applicant of the patent application and the applicant of the other patent or utility model application are the same person at the time of filing.
(4) Where the other patent or utility model application under paragraph (3) is an international application that is deemed to be a patent application under Article 199 (1) of this Act or which is deemed to be a utility model registration application under Article 57 (1) of the Utility Model Act (including an international application considered to be a patent application under Article 214 (4) of this Act or a utility model application under Article 71 (4) of the Utility Model Act), in applying the provisions of paragraph (3), "laid open" shall read "laid open or was the subject of an international publication under Article 21 of the patent Cooperation Treaty" and "an invention or device described in the specification or drawings originally attached" shall read "an invention or device described both in the specification, claims, or drawings of the international application as of the international filing date, and in the translated version thereof."
¡á Article 30 (Inventions not Deemed to be Publicly Known, etc.)
(1) If a patentable invention falls under any of the following subparagraphs, it shall be recognized as being novel where Article 29 (1) or (2) applies to the invention claimed in the patent application: Provided, That, the patent application therefor is filed within six months from the applicable date:
1. When a person having the right to obtain a patent has caused his invention to fall within the terms of any of subparagraphs of Article 29 (1) by conducting any one of the following acts on the invention:
(a) Act of conducting tests on the invention;
(b) Act of publishing the invention in printed matter;
(c) Act of publishing the invention through electric communication lines as prescribed by the Presidential Decree; or
(d) Act of presentation of the invention in writing before an academic organization as prescribed by Ordinance of the Ministry of Commerce, Industry and Energy;
2. When any invention falls under any subparagraph of Article 29 (1) against the will of a person having the right to obtain a patent therefor; or
3. When a person having the right to obtain a patent has caused his invention to fall within the terms of any of subparagraphs of Article 29 (1) by displaying his invention at an exhibition.
(2) Any person desiring to take advantage of the provisions of paragraph (1) 1 and 3 shall submit, simultaneously with his patent application, a written statement to that effect to the Commissioner of the Korean Intellectual Property Office, to whom he shall also submit, within thirty days from the filing date of the patent application, a document proving the relevant facts.
¡á Article 31 (Patent for Plant Invention)
Any person who invents a variety of plant which reproduces itself asexually may obtain a plant patent therefor.
¡á Article 32 (Unpatentable Inventions)
Inventions liable to contravene public order or morality or to injure public health shall not be patentable, notwithstanding the provisions of Article 29 (1) or (2).
¡á Article 33 (Persons Entitled to Obtain Patent)
(1) Any person who makes a new invention or his 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 during their employment at the Office except in the case of inheritance or bequest.
(2) If two or more persons jointly make an invention, the right to obtain a patent shall be jointly owned.
¡á 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 an "unentitled person") under the provision of Article 33 (1) as prescribed in subparagraph 2 of Article 62, a subsequent application filed by the lawful holder of the right shall be deemed to have been filed on the date of filing of the initial application filed by the unentitled person: Provided, That This provision shall not apply where the subsequent application is filed by the lawful holder of the right more than thirty days after the date on which the application filed by the unentitled person was rejected.
¡á Article 35 (Patent Granted to Unentitled Person and Protection of Lawful Holder of Right)
If a decision to revoke a patent becomes final for lack of entitlement to obtain a patent under the main sentence of Article 33 (1) as prescribed in Article 69 (1) 2 or a decision of invalidation becomes final due to a lack of entitlement under the provision 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 on the filing date the revoked or invalidated application: Provided, That this provision shall not apply where the subsequent application is filed more than two years after the publication date of the first application or more than thirty days after the decision of revocation or invalidation becomes final.
¡á 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 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: Provided, That the provision of paragraph (2) shall not apply in any cases where a patent application is made on the same date as a utility model registration application (including a patent application which is deemed to be made on the same date as a utility model registration application under Article 53 (3)), as prescribed in Article 53 as a dual application.
(4) Where a patent application or utility model registration application is invalidated or withdrawn, or a utility model registration application is rejected, such application shall, for the purposes of paragraphs (1) through (3), be deemed never to have been filed.
(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, for the purposes of paragraphs (1) through (3), be deemed never to have been filed.
(6) The Commissioner of the Korean Intellectual Property Office shall, in the case of paragraph (2), order the applicants to report to him the results of the consultation within a designated period of time, and if such report is not submitted within the designated period, the applicants shall be deemed not to have reached an agreement as referred to in paragraph (2).
¡á Article 37 (Transfer 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 the case of joint ownership of the right to obtain a patent, a joint owner shall not assign his share without the consent of all the other joint owners.
¡á 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 on the basis of a 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, on the basis of 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.
(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 accordingly without delay.
(6) Where two or more notifications of change of applicant are made on the same date, on the basis of a 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.
(7) Article 36 (6) shall apply mutatis mutandis to the cases under paragraphs (2), (3) and (6).
¡á Article 39 (In-Service Inventions)
(1) An employer, a legal entity, or the Government or a local public entity (hereinafter referred to as an "employer") shall have a non-exclusive license to the patent right concerned, where an employee, an executive officer of such a legal entity, or a public official (hereinafter referred to as an "employee") or successor in title has obtained a patent for an invention which, by reason of its nature, falls within the scope of the business of the employer and an act or acts resulting in the invention (hereinafter referred to as "in-service invention") were part of the present or past duties of the employee.
(2) Notwithstanding paragraph (1), an in-service invention made by a public official shall pass to the State or a local government and the patent right shall thereby revert to the State or a local government: Provided, That the in-service inventions of the teachers and staff of the State or public school under the Higher Education Act (hereinafter referred to as "State or public school") shall pass to the fully-responsible systems under the latter part of Article 9 (1) of the Technology Transfer Promotion Act (hereinafter referred to as "fully-responsible systems"), and the patent on the in-service inventions of the teachers and staff of the State or public school which have been passed to the fully-responsible systems shall revert to such fully-responsible systems.
(3) In the case of an invention made by an employee which is not an in-service invention, any contractual provision or any provision of service regulation providing in advance that the right to obtain a patent or the patent right shall pass to the employer or that the employer shall have an exclusive license on such invention, shall be null and void.
(4) Notwithstanding Article 6 of the National Property Act, the disposal and management of a patent right which has reverted to the State, in accordance with paragraph (2), shall be governed by the Commissioner of the Korean Intellectual Property Office.
(5) A disposal and management of a patent right under paragraph (4) which has reverted to the State shall be prescribed by the Presidential Decree.
¡á Article 40 (Remuneration for In-Service Inventions)
(1) The employee shall have the right to obtain reasonable remuneration when he has transferred to the employer the right to obtain a patent or the patent right with respect to an in-service invention, or has given the employer an exclusive license in accordance with a contract or service regulation.
(2) The amount of remuneration provided for in paragraph (1) shall be calculated in accordance with the profits to be realized by the employer from the invention and the extent of the employer and the employee's contributions to the creation of the invention. Matters relating to the payment of remuneration shall be prescribed by the Presidential Decree or by the Ordinance of the local government.
(3) If the State, a local government, or fully-responsible systems succeed to an in-service invention made by a public official under Article 39 (2), they shall provide reasonable remuneration to the public official. Matters concerning the payment of remuneration shall be prescribed by the Presidential Decree or by the Ordinance of the local government.
(4) Deleted. <by Act No. 4757, Mar. 24, 1994>
¡á Article 41 (Inventions Necessary for National Defense, etc.)
(1) If an invention is necessary for the national defense, the Government may order an inventor, an applicant, or an agent not to file a patent application for such invention in foreign patent offices concerned or to keep such invention confidential. However, 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, incident or other similar emergency, may expropriate the right to obtain a patent therefor.
(3) The Government shall pay reasonable compensation for losses arising from its prohibition of the filing of a patent application in a foreign patent office or from the maintenance of secrecy under paragraph (1).
(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 the filing of an application for an invention in a foreign patent office concerned or of an order to maintain secrecy under paragraph (1), the right to obtain a patent therefor shall be deemed to be abandoned.
(6) If there has been a violation of an order to maintain secrecy under paragraph (1), the right to request the payment of compensation for the loss arising from maintaining secrecy shall be deemed to be abandoned.
(7) Matters relating to the procedure, etc. for prohibiting the filing of an application abroad, proceedings for maintaining secrecy under paragraph (1), or for expropriation or payment of compensation under paragraphs (2) through (4) shall be prescribed by the Presidential Decree.
¡á Article 42 (Patent Application)
(1) Any person desiring to obtain a patent shall file a patent application with the Commissioner of the Korean Intellectual Property Office stating the following:
1. The name and the domicile of the applicant (if a legal entity, the title and place of business);
2. The name and the domicile, or place of business, of the agent, if any (the title, place of business and the name of the designated patent attorney if the agent 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 the inventor; and
6. Deleted. <by Act No. 6411, Feb. 3, 2001>
(2) The patent application under paragraph (1) shall be accompanied by a specification, drawing or drawings (if necessary), and an abstract stating the following:
1. The title of the invention;
2. A brief explanation of the drawings;
3. A detailed description of the invention; and
4. Claim(s).
(3) The detailed description of the invention under paragraph (2) 3 shall state the purpose, construction, and effect of the invention in such a manner that it may easily be carried out by a person having ordinary skill in the art to which the invention pertains.
(4) The claim(s) under paragraph (2) 4 shall describe the matter for which protection is sought in one or more claims (hereinafter referred to as "claim(s)") and the claim(s) shall comply with each of the following subparagraphs:
1. The claim(s) shall be supported by a detailed description of the invention;
2. The claim(s) shall define the invention clearly and concisely; and
3. The claim(s) shall define only the features indispensable for the constitution of the invention.
(5) Details concerning the drafting of claim(s) under paragraph (2) 4 shall be prescribed by the Presidential Decree.
(6) Details concerning the description of an abstract under paragraph (2) shall be prescribed by the Ordinance of the Ministry of Commerce, Industry, and Energy.
¡á Article 43 (Abstract)
An abstract under Article 42 (2) shall not be interpreted to define the scope of the invention for which protection is sought but rather, shall serve as a technical information document.
¡á Article 44 (Joint Applications)
Where the right to obtain a patent is owned jointly under Article 33 (2), all the joint owners shall apply for the patent application jointly.
¡á 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 the Presidential Decree.
¡á Article 46 (Amendment of Procedure)
The Commissioner of the Korean Intellectual Property Office or the President of the Intellectual Property Tribunal may order an amendment to a patent-related procedure, designating a period if said procedure falls under any of the following subparagraphs:
1. Where the procedure has not complied with the provisions of Article 3 (1) or 6;
2. Where the procedure has not complied with the formalities specified in this Act or the Presidential Decree thereof; or
3. Where fees required in accordance with Article 82 have not been paid.
¡á Article 47 (Amendment of Patent Application)
(1) An applicant may amend the specification or drawings attached to a patent application before the examiner issues a certified copy of a decision to grant a patent under Article 66: Provided, That in cases that fall under any of the following subparagraphs, an applicant may amend the application within the period prescribed in the subparagraphs:
1. Where an applicant receives notification of the reasons for refusal under Article 63 (hereinafter referred to as a "notice of the reasons for refusal") for the first time or receives a notice of the reasons for refusal other than the notice referred to in subparagraph 2, the period designated for submission of arguments against the notice of the reasons for refusal thereof;
2. Where an applicant receives a notice of the reasons for refusal of an amendment made in response to a notice of the reasons for refusal issued under subparagraph 1, the period designated for submission of arguments in response to said notice; or
3. Where an applicant requests a trial against a decision of rejection of a patent under Article 132-3, within thirty days from the filing date of the request.
(2) An amendment to a specification or drawings under paragraph (1) shall be within the scope of the features disclosed in the specification, claims or drawing(s) originally attached to the application.
(3) An amendment to the claims made under paragraphs (1) 1 and 2 shall be limited to the scope prescribed in any of the following subparagraphs. Where an amendment is made under subparagraph 3, it shall be limited to that which is indicated by the examiner in the notice of the reasons for refusal:
1. To narrow a claim;
2. To correct a clerical error; or
3. To clarify an ambiguous description.
(4) An amendment under paragraph (3) 1 shall meet the following requirements:
1. An amendment to a specification or drawings shall neither essentially expand nor modify the scope of the claims; and
2. The matters described in the claims after amendment shall be regarded as having been patentable at the time of the filing of the patent application.
¡á Article 48 Deleted. <by Act No. 6411, Feb. 3, 2001>
¡á Article 49 (Treatment of Amendments to Dual Application, etc.)
(1) Deleted. <by Act No. 6411, Feb. 3, 2001>
(2) If a dual application, as prescribed in Article 53, is recognized to extend beyond the scope described in the claims of the utility model registration in the specification that was initially attached to the application for utility model registration after registration of the patent right has been established, the said dual application shall be deemed to have been filed on the date when the application in writing was submitted.
¡á Article 50 Deleted. <by Act No. 5329, Apr. 10, 1997>
¡á Article 51 (Rejection of Amendment)
(1) Where an amendment under Article 47 (1) 2 is deemed to be in violation of paragraphs (2) through (4) of said Article, the examiner shall reject the amendment by decision.
(2) The decision to reject an amendment under paragraph (1) shall be made in writing and shall state the reasons thereof.
(3) No appeal shall be made against a decision to reject the amendment under paragraph (1): Provided, That this provision shall not apply to an appeal against the final rejection of the patent under Article 132-3.
¡á Article 52 (Division of Patent Application)
(1) An applicant who has filed a patent application comprising of two or more inventions may divide such application into two or more applications in accordance with the time period allowed for amendment as prescribed under Article 47 (1).
(2) A patent application divided under paragraph (1) (hereinafter referred to as a "divisional application") shall be deemed to have been filed at the time of filing of the original patent application: Provided, That in applying the provisions of the following subparagraphs to said divisional application, such an application shall be deemed to be made at the time when the divisional application was filed:
1. In the case where Article 29 (3) of this Act or Article 5 (3) of the Utility Model Act is applicable when the divisional application falls under an another patent application under Article 29 (3) of this Act or a patent application under Article 5 (3) of the Utility Model Act;
2. In the case where Article 30 (2) is applicable;
3. In the case where Article 54 (3) is applicable; or
4. In the case 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.
(4) In making a divisional application, any person claiming priority as prescribed in Article 54, may file the documents as prescribed in paragraph (4) of said Article with the Commissioner of the Korean Intellectual Property Office within three months after filing a divisional application, regardless of the period as prescribed in said paragraph of said Article.
¡á Article 53 (Dual Application)
(1) A person who makes an application for utility model registration may make an application for patent (hereinafter referred to as a "dual application") within the limit of such matters as stated in the claims of the utility model registration in the specification, which are initially attached to the application for said utility model registration from the filing date of the application for utility model registration to one year from the date when the establishment of a utility model right has been registered.
(2) A person who makes a dual application under paragraph (1) shall, at the time when an application for patent is made, indicate the purpose thereof and the application for utility model registration, which forms the basis thereof in a patent application.
(3) When a dual application is carried out pursuant to paragraph (1), the application for patent shall be deemed to have been filed on the filing date of the utility model registration application: Provided, That in a case where the provisions of the following subparagraphs apply to such an application for patent, it is deemed to be made at the time when said dual application is made:
1. In the case where Article 29 (3) of this Act or Article 5 (3) of the Utility Model Act is applicable when the application for patent falls under an another patent application under Article 29 (3) of this Act or a patent application under Article 5 (3) of the Utility Model Act;
2. In cases where Article 30 (2) is applicable;
3. In cases where Article 54 (3) is applicable; or
4. In cases where Article 55 (2) is applicable.
(4) In making an application for a patent, any person who claims a priority as prescribed in Article 54 may, notwithstanding the provision of paragraph (4) of said Article, submit such documents as prescribed in said paragraph to the Commissioner of the Korean Intellectual Property Office within three months after he makes the dual application.
¡á Article 54 (Priority Claim Under Treaty)
(1) If a national of one of the countries which recognizes under a treaty a right of priority for a patent application filed by a national of the Republic of Korea, claims the right of priority for a patent application in the Republic of Korea on the basis of the initial application for the same invention in his country or in one of said countries, 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. Where a national of the Republic of Korea has filed a patent application in a country which recognizes under a treaty the right of priority for patent applications filed by nationals of the Republic of Korea, and claims the right of priority for a patent application in the Republic of Korea on the basis of the initial application for the same invention in the said country, this provision shall also apply.
(2) A person intending to claim the right of priority in accordance with paragraph (1) shall file a patent application claiming the right of priority within one year from the filing date of the initial application.
(3) A person intending to claim the right of priority in accordance with paragraph (1) shall specify such claim, 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 files in the Republic of Korea.
(4) A person who has claimed the right of priority 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 in cases where the country is prescribed by Ordinance of the Ministry of Commerce, Industry and Energy:
1. A written statement setting forth 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; or
2. A written statement setting forth the file number of the application in the country where the initial application was filed.
(5) Documents under paragraph (4) shall be submitted within one year and four months from the earliest among the dates prescribed in the following subparagraphs:
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 earlier application which would be the basis for claiming a priority right in cases where a patent application contains other priority claims in accordance with Article 55 (1); or
3. The filing date of the application that is to be the basis for claiming a priority right in cases where a patent application contains other priority claims in accordance with paragraph (3).
(6) Where a person who has claimed the right of priority under paragraph (3) fails to submit the document prescribed under paragraph (4) within the prescribed period, the claim to the right of priority shall lose its effect.
(7) A person who is eligible to claim the right of priority under paragraph (1) and is in compliance with the requirements of paragraph (2) may amend or supplement said priority claims within one year and four months from the earliest date prescribed under paragraph (5).
¡á Article 55 (Priority Claim Based on Patent Application, etc.)
(1) A person desiring to obtain a patent may claim the right of priority for an invention claimed in a patent application which has been disclosed in the description or drawings originally attached to a patent application or utility model registration application, for which he has the right to obtain a patent or utility model registration, and which has been filed earlier (hereinafter referred to as an "earlier application") except in any of the following cases:
1. Where the patent application concerned is filed more than one year from the filing date of the earlier application;
2. Where the earlier application is a divisional application under Article 52 (2) or a dual application under Article 53 of this Act or a divisional application under Article 16 (2) of the Utility Model Act or a dual application under Article 17 of the Utility Model Act;
3. Where the earlier application has been abandoned, invalidated, withdrawn or rejected at the time the patent application is filed;
4. Where an examiner's decision to grant or refuse a patent, or a trial decision on the earlier application has become final and conclusive; or
5. Where the earlier application is registered under Article 35 (2) of the Utility Model Act at the time when said patent application is made.
(2) A person intending to claim the right of priority under paragraph (1) shall, simultaneously with the patent application, make such a claim and identify the earlier application in the patent application.
(3) For inventions which are amongst those described in a patent application containing a priority claim under paragraph (1), which are disclosed in the specification or drawings originally attached to the earlier application which would be the basis for claiming a priority right, [excluding those inventions disclosed in the specification or drawings submitted at the time of the filing of an application whose priority is claimed for an earlier application in the case where that earlier application contains a priority claim under paragraph (1) of this Article or under Article 4D (1) of the Paris Convention for the Protection of Intellectual Property] the patent application shall be considered to have been filed at the time when the earlier application was filed for the purpose of Articles 29 (1) or (2), and 29 (3) (main sentence), 30 (1), 36 (1) through (3), 47 (4) 2, 96 (1) 3, 98, 103, 105 (1) and (2), 129 and 136 (4) (including cases that apply mutatis mutandis to Article 77 (3) or 133-2 (3)) of this Act, Articles 8 (3) and (4) and 39 of the Utility Model Act, or Articles 45 and 52 (3) of the Design Act.
(4) For inventions which are amongst those described in the specification of drawings originally attached to a patent application containing a priority claim under paragraph (1), which are disclosed in the specification or drawings originally attached to the earlier application which would be the basis for claiming a priority right, [excluding those inventions disclosed in the specification or drawings submitted at the time of the filing of an application whose priority is claimed for an earlier application in the case where that earlier application contains a priority claim under paragraph (1) of this Article or under Article 4D (1) of the Paris Convention for the Protection of Intellectual Property] the laying open of the earlier application for public inspection shall be considered to have been effected at the time when the publication after registration of a patent right or the laying open of the patent application for public inspection was effected, for the purposes of the main sentence of Article 29 (3) of this Act and the main sentence of Article 5 (3) of the Utility Model Act. In this case, where the earlier application is an international application which is deemed to be a patent application under Article 199 (1) of this Act or which is deemed to be a utility model registration application under Article 57 (1) of the Utility Model Act (including an international application considered to be a patent application or a utility model registration application under Article 214 (4) of this Act or Article 71 (4) of the Utility Model Act), "an invention or device described both in the specification, claim or drawings of the international application as of the international filing date and in the translated version thereof" in Article 29 (4) of this Act shall read "an invention or device described in the specification, claim or drawings of the international application as of the international filing date".
(5) A person who is eligible to claim the right of priority under paragraph (1) and who is in compliance with the requirements referred to in paragraph (1) may amend or supplement said priority claims within one year and four months from the filing date of the earlier application (the earliest filing date in cases where the earlier application is a dual application).
¡á Article 56 (Withdrawal of Earlier Application, etc.)
(1) If an application is filed claiming priority from an earlier application under Article 55 (1), the earlier application shall be deemed to have been withdrawn at the time that priority is claimed if the earlier application is utility model registration application and at the expiration of one year and three months from the filing date of the earlier application if the earlier application is a patent application: Provided, That this provision shall not apply where that earlier application falls under any of the following subparagraphs:
1. In the case of its being abandoned, invalidated, withdrawn, or rejected;
2. In the case where an examiner's decision of patentability, or a trial or trial decision, rejecting the application has become final and conclusive;
3. In the case where priority claims based on the earlier application concerned have been withdrawn; or
4. In a case of it being registered under Article 35 (2) of the Utility Model Act.
(2) The applicant of a patent application containing a priority claim under Article 55 (1) may not withdraw the priority claim after the expiration of one year and three months from the filing date of the earlier application.
(3) Where the patent application containing a priority claim under Article 55 (1) is withdrawn within one year and three months from the filing date of the earlier application, the priority claim shall be deemed withdrawn simultaneously therewith.
CHAPTER III EXAMINATION
¡á Article 57 (Examination by Examiner)
(1) The Commissioner of the Korean Intellectual Property Office shall have applications for patents and oppositions to the grant of patents examined by an examiner.
(2) The qualifications for examiners shall be prescribed by the Presidential Decree.
¡á Article 58 (Search for Prior Art, etc.)
(1) If it is deemed necessary for the process of examination, the Commissioner of the Korean Intellectual Property Office may rely on a specialized search organization for searching prior art.
(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, and may pay them allowances or expenses for such cooperation or advice within the limits of the budget of the Korean Intellectual Property Office.
(3) Necessary matters concerning the designation of specialized search organizations, such as a standard for designation and implementation procedures for searching documents under paragraph (1), shall be prescribed by the Presidential Decree.
¡á Article 58-2 (Cancellation of Designation of Specialized Search Organization)
Where a specialized search organization falls under any of the following subparagraphs, the Commissioner of the Korean Intellectual Property Office may cancel the designation of said search organization or order suspension of its business operations within a designated period: Provided, That if a specialized search organization falls under subparagraph 1, the Commissioner of the Korean Intellectual Property Office shall cancel its designation:
1. Where the search organization has obtained designation through false or unfair means; or
2. Where the standard for designation is improper under Article 58 (3).
¡á 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.
(3) With respect to a divisional application under Article 52 (2), or a dual application under Article 53, a request for examination may be made even after the expiration of the period prescribed in paragraph (2) within thirty days from the date of the division or the dual application.
(4) A request for examination of an application shall not 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.
¡á Article 60 (Procedure for Request for Examination)
(1) Any person desiring to make a request for 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:
1. The name and the domicile of the person making the request (if a legal entity, the title, the place of business and the name of its representative);
2. The date of submission of the request; and
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 laying-open of the application, the Commissioner shall publish such fact in the Patent Gazette without delay.
(3) The Commissioner of the Korean Intellectual Property Office shall, where a request for examination of an application has been made by a person other than the applicant, notify the applicant of such fact.
¡á Article 61 (Preferential Examination)
The Commissioner of the Korean Intellectual Property Office may direct the 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; or
2. Where the Commissioner of the Korean Intellectual Property Office deems it necessary to urgently process a patent application as prescribed by the Presidential Decree.
¡á Article 62 (Decision of Refusal of Patent)
The examiner shall make a decision to refuse an application for a patent in cases falling under any of the following subparagraphs (hereinafter referred to as "reason for refusal"):
1. Where any invention is not patentable under Article 25, 29, 31, 32, 36 (1) through (3), or 44;
2. Where the said application is made by a person who does not have the right to obtain a patent under main sentence of Article 33 (1), or where any invention is not patentable under the proviso of Article 33 (1);
3. Where the said application is in violation of a treaty;
4. Where the said application fails to satisfy the requirements as prescribed in Article 42 (3) through (5) or 45; or
5. Where the said application is amended in violation of Article 47 (2).
¡á Article 63 (Notification of Reasons for Refusal)
Where an examiner intends to render a decision to refuse a patent under Article 62, he or she shall notify the applicant of the reasons and give the applicant an opportunity to submit a written statement of applicant's arguments and shall designate a period of such submission: Provided, That this provision shall not apply where the examiner intends to reject an amendment under Article 51 (1) as it falls under Article 47 (1) 2.
¡á Article 64 (Laying Open of Application)
(1) Under the Ordinance of the Ministry of Commerce, Industry and Energy, the Commissioner of the Korean Intellectual Property Office shall lay open a patent application in the Patent Gazette at the expiration of one year and six months from the date prescribed in any of the following subparagraphs or upon request from the applicant even before the expiration of one year and six months from said date: Provided, That this provision shall not apply where the application has already been published in accordance with Article 87 (3):
1. Where a patent application contains a priority claim under Article 54 (1), the priority date shall apply;
2. Where a patent application contains a priority claim under the provisions of Article 55 (1), the filing date of the earlier application shall apply as prescribed in Article 55 (1);
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); or
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) Any person may, at the time the application is laid open under paragraph (1), furnish the Commissioner of the Korean Intellectual Property Office with information together with evidence, to the effect that the invention concerned is unpatentable under Article 62: Provided, That if the requirements prescribed in Articles 42 (5) and 45 mentioned in subparagraph 4 of Article 62 are not complied with, this provision shall not apply.
(3) The provisions of Article 87 (4) shall apply mutatis mutandis to the laying-open of applications under paragraph (1).
(4) Matters to be published in the Patent Gazette with respect to the laying-open of applications under paragraph (1) shall be prescribed by the Presidential Decree.
¡á 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 in paragraph (1) or knowing that the invention has been laid open, to pay compensation in an amount equivalent to what he 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 application of the invention had been laid open to the time of the registration of the patent right.
(3) The right to demand compensation as provided in paragraph (2) shall be exercised only after the registration of the patent right.
(4) The exercise of the right to demand compensation under paragraph (2) shall not preclude the exercise of the patent right.
(5) Article 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 right to demand compensation under paragraph (3). In such case, "the time when the damaged party or his legal representative became aware of such damage and of the identity of the person causing it" in Article 766 (1) of the Civil Act shall read "the date of registration of the involved patent right."
(6) Where a patent application is abandoned, invalidated or withdrawn after the laying-open of the application, or a decision of refusal or revocation of a patent under Article 74 (3), or a decision to invalidate a patent under Article 133 (except such a case as prescribed in Article 133 (1) 4) has become final and conclusive, the right under paragraph (2) shall be deemed never to have existed.
¡á Article 66 (Decision to Grant Patent)
Where an examiner does not find any grounds for rejecting a patent application, he shall render a decision to grant a patent.
¡á Article 67 (Formalities for Decision of Patentability)
(1) A decision to either grant or refuse a patent (hereinafter referred to as a "decision of patentability") shall be made in writing and shall state the reasons therefor.
(2) Where a decision of patentability has been rendered, the Commissioner of the Korean Intellectual Property Office shall transmit a certified copy of the decision to the patent applicant.
¡á Article 68 (Mutatis Mutandis Application of Provisions concerning Trial to Examination)
The provisions of Article 148 (i) to (v) and (vii) shall apply mutatis mutandis to the examination of a patent application.
¡á Article 69 (Objection to Grant of Patent)
(1) Any person may raise an objection to the grant of a patent with the Commissioner of the Korean Intellectual Property Office on the grounds that the patent falls under any one of the following subparagraphs from the date of publication of the registration of the patent to three months from the date of registration of the patent right. In this case, if the patent contains two or more claims, an objection to the patent may be raised against each claim:
1. Where the patent has been granted contrary to the provisions of Article 25, 29, 31, 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 under the main sentence of Article 33 (1) or where the invention is not patentable under the proviso of Article 33 (1);
3. Where the patent has been granted in violation of a treaty;
4. Where the patent has been granted contrary to the provision of Article 42 (3) or (4);
4-2. Where the application is amended in violation of Article 47 (2); or
5. Where the establishment of the patent has been registered in violation of the proviso of Article 87 (2).
(2) A person who files an opposition (hereinafter referred to as "the opponent") shall submit to the Commissioner of the Korean Intellectual Property Office a written opposition together with the relevant evidence stating the following:
1. The name and the domicile of the opponent (if the opponent is a legal entity, its title and place of business);
1-2. If the opponent has an agent, the name and the domicile or place of business of the agent (if the agent is a patent corporation, its title, place of business and the name of the appointed patent attorney);
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