Over the next couple of months, lawyers here at IPG Legal shall provide detailed insight and analysis of the Patent Laws of Korea. The following post details the basics of filing for a patent in South Korea. For other articles on patents please see Patent Developments of 2022 and Validity of a Patent and Patent Royalties in Korea.
Individuals or companies can register for patents through the Korean Intellectual Property Office (KIPO). The application and registration of patents are governed by the Korean Patent Act (“the Act”). In most cases, patents may be filed in English, but extra specific measures should be taken prior to, simply, filing a patent in the English language. This article, in short, shall detail the measures as well as other important tips for those thinking of filing a patent in Korea.
Who Can File a Patent in Korea?
Both the creator of a particular invention or their assigned representative may file for a patent in Korea. Applicants can either be individuals themselves or “juristic persons” which is a body recognized by the law as being entitled to rights and duties in the same way as a natural or human person (i.e. a company). For an article on Patents created by employees please see: Korean Invention Promotion Act: Employee Patent Inventions.
Patentability of an Invention in Korea
According to the Korean Patent Act and KIPO’s own internal requirements, the following cannot be granted a patent in Korea:
- laws of nature;
- discoveries of laws of nature or natural phenomena;
- concepts contrary to the laws of nature (e.g., perpetual motion machine);
- personal skills obtainable by practice (e.g., tennis);
- computer programming languages/computer programs;
- representation of information (e.g., presentation materials); and
- artistic creations
Additionally, the Patent Application in Korea shall be denied unless:
- The invention has an industrial application;
- The invention is novel;
- The inventor was the first to file; and
- Invention is a “unity of invention,” via a “common inventive” element.
Completing a Patent Application in Korea
In order to enjoy a priority filing right in Korea, applicants should file applications within one year of the priority date. The priority date is the earliest date on which an application may claim precedence. When filing a single patent application, the priority date and filing date are the same date. However, when multiple patent applications are filed for a complementary product/invention, the priority date is the filing date of the earliest patent that initially reported that product/invention.
Though the official language of patent registration in Korea is, as one might suspect, Korean; applicants may file applications in English. If you are planning on submitting an application in English, Korean translations must be submitted, in most cases, within 14 months from the earliest priority date. It should be noted that applicants who do not have a residential or business address in Korea must hire a professional to represent them in patent proceedings.
Challenging a Patent Decision at KIPO or in a Korean Court
Should a patent be accepted by KIPO, the applicant should pay the first three years’ fees within three months of acceptance of the patent. If a patent is refused, Korea has an appeals process which consists of a KIPO panel of examiners as well as legal recourse through the Korean Patent Court and, if necessary, the Supreme Court.
In cases where a third party wishes to challenge the validity of a KIPO-granted patent in Korea, interested parties are required to file an invalidation request or through opposition proceedings in a Korean court. Filings for an invalidation proceeding may be filed at any time after the patent is granted or even after the patent has expired, whereby, opposition claims can only be made within six months of publication of the granted patent in question. For more information on infringement on your patents in Korea please see: the Korean Patent Court’s Intellectual Property Infringement Guidelines.
Should you or your firm be interested in learning more about filing a patent in Korea, please set up a call with one of our attorneys at IPG Legal.
