First -to-file rule system

Korean patent law adopts the first-to-file rule. Accordingly, if an invention is to be used in Korea, it is greatly desirable to place same on file as early as possible.

One application per one invention system

Each application is limited to one invention. Each invention may belong to one of the following categories including manufacturing processes, apparatus, its new use, pharmaceuticals, foodstuffs and luxury goods. An invention may include all of the above categories.

Filing an Application

To apply for a patent in Korea, one must file application document as prescribed by law. However, persons having neither a domicile nor residence in Korea(or in the case of a legal entity, a business establishment) must file the application through a patent attorney (patent adminstrator) having a domicile or residence in Korea (Patent Law, art. 5). This is to facilitate communication between the applicant and KIPO.(Korean Industrial Property Office)

Emphasis should be given to the difference between Korea and foreign legislations and also in the languages used. To avoid unnecessary complications, a foregin applicant is advised to consult his/her patent attorney in Korea, and respect his/her opinions as that of a professional.

a. Documents to be Filed with KIPO

1) Any person interested in obtaining a patent shall submit an application to the commissioner of the KIPO stating the following(Patent Law, Art. 42(1) :

(i) the name and domicile or residence of the applicant and, in the case of a legal entity, the name of an officer entitled to represent it ;
(ii) the date of submission ;
(iii) the title of the invention ;
(iv) the name and domicile or residence of the inventor.

2) The patent application shall be accompanied by a specification, a drawing(if necessary), and an abstract mentioning the following (Patent Law, Art. 42(2) :

(i) the title of the invention ;
(ii) a brief explanation of the drawings ;
(iii) a detailed description of the invention ; and
(iv) the patent claim(s).

b. Procedures for Claiming priority

1) Persons wishing to claim priority according to the Provision 4D(1) of the Paris Convention must proceed as follows (Patent Law, Art. 54) :

(i) file simultaneously with the application, a document specifying the name of the country, which is party to the Paris Convention, in which the application was first filed with the filing date of the application in that country; and
(ii) present document such as a Certificate of Priority Claim issued by the original filing country to the KIPO within 16 months from the filing date of the first application.

Requisites for Obtaining Patents

a. Requisites Concerning Invention

Apart from the requisites concerning the writing of the specification, the invention must meet the conditions mentioned below in order to be patented :

1) Patentability

(i) It should satisfy the following definition :

An invention is defined as a creation of "technical ideas utilizing rules of naturel "(Patent Law Art. 2(1). Therefore, simply mentioning evidence of natural law will not be considered an invention.
(ii) Novelty
If prior to the filing of an application, the invention was publicly known or worked in Korea, or mentioned in a publication distributed anywhere in the world, that invention shall not be patented. Any disclosure, prior to application, e. g., in a printed publication, even by the inventor him/herself, results in a lack of novelty for invention
(iii) Inventive step
Any invention which could be invented easily by a person having ordinary skill in the art, based on an invention(s) publicly known or worked in Korea or mentioned in a publication distributed anywhere in the world prior to application, shall not be patented.
(iv) Industrial Applicability
The invention must be potentially useful in industry.
(v) The invention must be completed
An invention of which the indispensable element are partially or totally lacking is considered incomplete and will be subject to rejection.

2) It should not fall under any conditions for Unpatentability

Invention of substances produced by nuclear transformation and inventions violating public order or morale cannot be patented regardless of whether requisites under "(1)" are met.

However, KIPO is considering the deletion of the invention of substances produced by nuclear transformation from the conditions for Unpatentability.

3) It must be the earliest application : First-to File rule

If more than one applicant files a patent application for an identical invention. the patent will be granted to the earliest filed application, regardless of whether the inventors or applications are identical or not.

4) The invention should not have been disclosed in specification or drawing(s) of an earlier published application, either unexamined or examined

If the invention which was filed for a patent is identical to an invention mentioned in the specification or the drawing(s) of an application which was filed earlier, it cannot be patented even if the later application was filed prior to the publication (either unexamined or examined) of the earlier application, or if the applicant of the later application is identical to that of the earlier application when filed.

Therefore, a person desiring the application of the provision to his/her invention is advised to consult with his/her patent attorney.

b. Requisites Concerning Specification

The aim of the patent system is to allow useful inventions to be utilized by society in general by making such inventions public, thereby promoting development of industry. A "patent" granted to the inventor provides compensation to the inventor for disclosing his/her invention.

A Specification serves both as a document in which the techical content of the invention is completely disclosed and as a document claiming the technical scope of that right.

Requisites for Cliams

(i) Independent claims (indispensable constituent features)
In the claim of an application, only one invention shall be mentioned (the "principle of one invention-one application"). Since an independent claim is considered an invention, only one independent claim is permitted one application.

(ii) Dependent claims
In dependent claims, aside from indispensable constituent features of the invention, one or more specific embodiments of the invention may be included. By specific embodiments of the invention, it is meant that technological methods are adopted for accomplishing the aim of that invention. Hence, the specific embodiments of the invention must be mentioned by referring to the indispensable constituent features of the invention or another embodiment.

Request for Examination of a patent application

A patent application is examined only upon request for examination. When a patent application has been filed, any person may request for examination within five years (three years for utility models) from the filing date thereof. if a request for examination has not been made within time limits prescribed, the patent application shall be deemed to have been withdrawn.

Laying Open of Application

After one year and six months from the date of an application for a patent, the Commissioner of KIPO shall publish the patent application in the Patent Gazette.

Notification of Reasons for Rejection

If any reasons for rejection are found in the process of examination by an examiner, that examiner should notify the applicant of reason and provide the applicant with an opportunity to submit a written statement of his arguments, designating a time limit for such submission.

Allowance for Registration

When an examiner finds there are no reasons for rejecting the patent application. he shall render a decision that the application is allowable for registration. Then, within 3 months from the allowance for registration from "KIPO", the applicant can pay the registration fees for registration of that patent.

Publication of Application for Public Inspection

After payment, the application is to be published in the Patent Gazetter for three months for opposition. Within the period, if any opposition is not raised or if the opposition as raised is not reasonable, then applicant for that patent shall have the effective excusive right to commercially and industrially work the invention claimed in the patent application. However, if the examiner decides that there is a valid reason for opposition, the registration of application is canceled.