Patent filing in Korea is governed by Korean Patent Act. Patents may be granted in Korea for devices, methods, processes, and material inventions. A patentee shall have the exclusive right to practice his/her patented invention for business purposes.
Prerequisites of patentability
- Novelty – it must not be known to the public (prior art) before an application is submitted
- Inventive step – it must not be easily derivable from prior art, even though it differs from prior art
- Industrial applicability – it must be usable in industry
- first to file – when two or more patent applications relating to the same invention are filed on different dates, only the application with the earliest filing date is patentable
- Unity of invention – an application may include only one invention or a group of inventions that share a common inventive feature.
Who can apply for a patent in Korea?
The applicant for a patent application can be either the inventor of an invention or his assignee can file a patent application for the invention. The applicant may be either a natural person or a juristic person.
>What is Patentable in Korea?
Patentable subject matter includes devices; methods; processes; and material inventions. For software related inventions, a patent may be granted for the method of functioning of the hardware and the physical medium which stores the program. A downloadable app would not qualify for a patent. You can, however, seek copyright protection for software under Korea’s Copyright Act.
Non-patentable subject matter:
- laws of nature;
- discoveries of laws of nature or natural phenomena;
- ideas contrary to the laws of nature (e.g., a perpetual motion machine);
- personal skills obtainable by practice (e.g., the method for playing a musical instrument);
- mere presentation of information;
- aesthetic creations;
- inventions that conflict with public order, morality, or public health;
- methods for the medical treatment of humans, including surgical, therapeutic and diagnostic methods
- computer programming language or computer programs, software and business methods covering only abstract ideas or mental steps;
|Relevant Office||Korean Intellectual Property Office|
|Law in Force||Patent Act|
|PCT Contracting State||YES|
|Document(s) required for filing patent application||Name and domicile or place of business of applicant. Name and domicile of the inventor. Name and the domicile or place of business of an agent (if the applicant is represented by an agent). Power of Attorney Priority Details and Priority Document, if applicable. Title of the invention. Specification containing description, claims, drawings, and abstract.|
|Prosecution Process||Applications are laid-open for public inspection after expiry of 18 months from their filing/priority date, or earlier upon request by the applicant. Substantive examination begins after a request for examination is filed. The deadline to file request for examination is up to 3 years after the filing date for applications filed on or after 17 March 2017 or up to 5 years for applications filed before 17 March 2017. The examination decision is typically issued within 10 to 13 months of the request for examination. The applicant’s response must be submitted within 2 months from the date of notice of rejection, which may be extended up to 4 months.|
|Registration Term||Patents in Korea are valid for 20 years from the date of filing. The validity term of a utility model in Korea is 10 years from the date of filing, which is non-renewable.|
>Types of application in Korea
An applicant may file a Korean patent or utility model application by filing:
- an application in Korea;
- an international application under the Patent Cooperation Treaty and subsequently entering into the Korean national phase within 31 months from the priority date; or
- a foreign application and then claiming priority through the Paris Convention within 12 months of the foreign filing date.
A divisional application is filed to divide a patent application (parent application) into two or more applications. An applicant who has filed a patent application comprising of two or more inventions may divide the application into two or more applications within the scope of the features described in the specification or drawings accompanying the initial patent application.
An applicant can convert a patent application to a utility model application or vice versa within thirty days of the date on which the applicant received a certified copy of the first decision of rejection. The converted application will retain the filing date.
The official language for patent registration is Korean. The application may be filed in English; however, its translation into Korean should be submitted within following deadline:
- National Phase Application – within 31 months from the earliest priority date (one-month extension available)
- Convention Application – within 14 months from the earliest priority date
Patent Examination & Prosecution
A patent application shall be examined only upon receipt of a request for examination. A request for examination may be made by any person within three years from the date of filing a patent application in Korea, or within 5 years if an application is filed before March 1, 2017.
The applicant who has filed a divisional application or converted application may file a request for examination of the application within 30 days from the filing date of the divisional application or converted application, even after the expiration of the specified period.
If a request for examination is filed before the application is laid open, the Korean Intellectual Property Office shall publish relevant facts in the Patent Gazette when the application is laid open. If a request for examination is filed after the application is laid open, the Korean Intellectual Property Office shall publish relevant facts in the Patent Gazette without delay.
Upon receipt of an application for examination from any person other than the patent applicant, the Korean Intellectual Property Office shall notify the patent applicant of such facts.
If no request for examination of an application is filed during the specified period, the patent application shall be deemed withdrawn.
Upon examination, if any reason for refusal or a formal deficiency is found, the Examiner issues Notification of Reasons for Refusal indicating the grounds of rejection. The applicant is then required to file a written response within 2 months from the date of such notice. The said time period may be extended up to four months on a monthly basis, or more than two months in one lump upon payment of official extension fees. If the Examiner considers that the response does not overcome the notice of rejection, or if the applicant fails to submit the response within deadline, a Final Rejection is issued.
If an examiner finds no ground to reject a patent application, patent is granted.
The applicant can request for a deferred examination within nine months from the date of examination request. The applicant can also select the date of deferred examination which must be at least two years after the examination request and within five years of the application date. The Korean Intellectual Property Office will issue the first office action within three months of the deferred examination date.
Patent Grant & Renewal
A patent takes effect when the grant of patent is registered. Once registered, the Korean Intellectual Property Office issues a patent registration certificate to the patentee and gives public notice of registration in the Patent Gazette.
The term for a patent is 20 years from the filing date of the patent application. The term for a utility model is 10 years from the filing date of the patent application.
Annual fees for 1-3 years are required to be paid within 3 months from date of Notice of Allowance as a registration fee upon issuance. No annual fees are incurred during pendency of application. The annual fees for the fourth and subsequent years are required to be paid in advance before the anniversary of date of registration. Extension of 6 months after expiry of the initial period for payment is applicable. It is possible to pay the annuities in an accumulated manner.
Any person may file opposition within 3 months from the date of publication of the application in the Official Gazette of Patent Applications and within 6 months from the date of publication of the grant in the Official Gazette of Granted Patents.
Any person can file request for cancellation of a registered patent to the Intellectual Property Trial and Appeal Board (IPTAB) by submitting prior arts, not cited during the examination. All proceedings are based on written arguments. The patentee can appeal the cancellation decision to the Patent Court and subsequently to the Supreme Court.