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   Letter No.10 (2003-7-23)

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IP (Intellectual Property) SYSTEM OF KOREA


Korea has adopted the "First to file" rule and the "Registration" system for the protection of inventions. Under these systems, a party who first files a patent application with the Korean Intellectual Property Office (KIPO) will be given a priority over others to enjoy patent rights.

KIPO will only examine patentability of an invention when it is properly requested. The examination must be requested within 5 years from the date of the Application, and the applications will be examined in order of requests made. Currently, it takes about 20 to 30 months for the application to be examined once the request has been made. However, in certain circumstances the KIPO will expedite the examination.

Applications for patents are laid-open to the public 18 months after the filing date, but the applicant may request an earlier disclosure. Again applications for patents are published in the Official Gazette once they are allowed to register.

The examiner will issue a Notice of Allowance upon satisfactory examination of the Patent Application. The applicant must then pay the required registration fee to the KIPO within 3 months from the date of the Notice issued. KIPO will publish the application in the Official Gazette to allow any objections to be made within 3 months from the publication date.

If, during the patent examination, the examiner finds any reasons to reject the application, an Office Action will be issued inviting the applicant to state their opinions. The applicant may lodge an appeal if the decision from the examiner stands thereafter.

Patent rights are created when the examiner grants an application and properly registered. The term of a patent right is 20 years from the filing date; however, in case of pharmaceutical or agricultural medicine inventions, the applicant may request extension beyond 20 years in order to recoup time spent on testing.

Korea is a member of the World Trade Organization, the Paris Convention, the Patent Cooperation Treaty, and the Budapest Treaty of the International Recognition of the Deposit of Microorganisms. As a result, any foreign party filing an application in Korea will enjoy the same rights as Korean citizens will enjoy.


2. Utility Model

1) Outline

Korea protects so called "devices" through the Utility Model Law. Compared to an invention which is considered as advanced technological idea, a device only requires creation of any technological idea based on the rules of nature that is not based on any advanced technology.

Utility Model Applications are completely in line with that of Patent Applications in terms of procedure and processes such as "first-to-file" rule, request for amendment and registration and publication system except for the followings.

2) Differences

(1) Subject of Protection:

Patent protects an invention whereas utility model protects only a device. Inventions protected under the Patent Law can be separated as inventions on an article and inventions on the process of an article. Utility model only protects devices in relations to an article and not the process of an article. An article can also be divided into commodities with a fixed form and substances with no fixed form. Again, the utility model only protects commodities with a fixed form and not the substances without fixed form such as Agricultural Medicine, Medicine, DNA Structures, Microorganisms, Glass Constructions and Cement Constructions. Korean utility model limits its protection to devices capable to be practiced in relations to shape, structure and mixture of commodities.

(2) Conditions of Registration:

Patentability of an invention and elements of utility models are regulated under the same categories such as industrial utility, novelty and inventive steps, but the requirement of inventive steps in utility models is applied more leniently. In other words, the device is not considered obvious as long as the prior arts do not allow those skilled in art come up with the device "very" easily. As result, one can say that the criteria for examining obviousness in the patents and utility models are quite different.

(3) Registration without Substantive Examination:

Since July 1, 1999, utility model applications are registered without substantive examination in Korea. All applications are now subjected to only a procedural and basic examination. However, where an applicant wishes to exercise his/her right to file a suit against an infringer or a third party, then a technical evaluation with the KIPO must be filed to obtain a decision regarding the patentability of the utility model right.

(4) Importance of a Drawing:

Drawings are submitted only on a need basis when filing Patent Applications, whereas drawings are an essential element and must be included in Utility Model Applications.

(5) International Application under PCT:

Any international applications based on Patent Cooperation Treaty apply different rules to Utility Model Applications when it comes to submitting drawings. The applicant of the international Utility Model Application must produce relevant drawings within the time specified. In case of failure to produce drawings in time, the application may be considered as withdrawn.

3. Design

1) Design Registrations

Design of goods and commodities ("Articles") are protected by the "registration" system and "first to file" rule. Therefore, in order to protect a design, one must file an application to the Korean Intellectual Property Office (KIPO) and rights for designs are obtained only when an applicant who wishes to register a design has filed the first application with the KIPO.

Under the Korean Design Law, "design" means the shape, pattern, or color, or part thereof, or a combination of these in an article which produces an aesthetic impression in the sense of sight.

Upon filing of a design applications subject to substantive examination, the KIPO will examine registration requirements such as industrial utility, novelty, creativity and extended "first to file" rule before granting registration, but for design applications that are not subject to substantive examination, satisfying only part of the requirements is enough.

For applications subject to substantive examination, they will be laid open to the public only upon request made by the applicant on the registerable application. However, the applicant may request the KIPO to keep the application confidential for maximum period of 3 years when lodging a Design Registration Application.

Rights to a design are created when the examiner grants an application and when it is properly registered. The term for a design is 15 years from the date of the registration.

2) Revisions to the Korean Design Law effective on July 1, 2001.

(1) Design as to the Part of an Article

Registration of part of an article has been adopted to protect the creativity and its worth, and to prevent any disputes arising out of misappropriating certain parts of an article.

(2) Priority status to the Part of an Article

Following the adoption of allowing the registration of part of an article, the system of granting the status of principal application to the application for the part of an article has also been adopted. As a result, the filing date of the application for the part of an article relates back to the filing date of the principal application giving an advantageous status.

(3) Exclusion of Functionality

Design protection does not extend to the features of shape or configuration dictated solely by the function which the article has to perform because it is protected under the patent or utility model law.

(4) Set of Articles

Any combination of products that is used or traded as a single product, such as set of articles or compositions of items will now be registered as a single application, and previous requirements to register them separately have been abolished for a broader protection of articles.

(5) Registration without substantive examination

In order to maintain the speedy registration process and reduce the number of faulty registrations resulting from the system of registration without substantive examination, applications are now subjected to examination as to its basic requirements of designs, industrial utility, and non-registrable category.

(6) Extension of opposition period

To expand public participation on the process of design registration without substantive examination and to be compatible with the allowable time to file an invalidation action to the Korean Intellectual Property Tribunal, an opposition period has been extended to 3 months from the registration date.

(7) Recovery of design rights

If the registration fee is not paid within the due date, an application or a design right will be forfeited except in a situation where such delay in payment is not from a certain adverse circumstance of applicant's control and the registration fee is paid within 14 days from the time the adverse circumstance ends.

4. Trademark

Under Korean Trademark Law of "first to file" rule, anyone who wishes to register a trademark/servicemark may file an application with the Korean Intellectual Property Office (KIPO) regardless of whether the trademark has actually been used.

According to the Korean Trademark Law, no specific rights have been granted to the original user of a trademark. However, where the trademark is well-known or famous, its original user may be protected as a rightful owner of that trademark. Furthermore, any trademarks that are well-known abroad shall also be protected as long as they meet certain prescribed condition.

The examiner examines all trademark applications as to whether they are distinguishable from one another in terms of the marks and their goods or services and whether they fall within a prohibited category. If the examiner finds no reason to reject the application, they will render a decision to publish it and the application is published in the Official Gazette for 30 days for public inspection.

Trademark rights are created when it is properly registered upon the examiner granting an application, and its original term of 10 years from the date of registration is renewable for further terms of 10 years.

Korea, in preparation of joining the Trademark Law Treaty and the Madrid Protocol, has amended Trademark Law in 1997 and 2001 respectably. Major changes are as follows (Korea became a party to the Madrid protocol on January 10, 2003 and the legislation came to effect on April 10, 2003):

1) NICE Classification

Korea has adopted NICE International Classification system as of March 1, 1998 for all trademark applications.

2) Multiple Class Application/Registration

Consistent with the Trademark Law Treaty, the revised Korean Trademark Law allows a single application and registration to cover one or more classes.

3) Three-Dimensional Marks

The revised Trademark Law also adopts the three-dimensional trademark system in response to growing international demands and to adapt to the diversified market

4) Foreign Marks

Foreign Trademarks that are well-known and famous outside of Korea may also be protected as the revised law grants power to reject any applications which is merely an imitation of well-known and famous foreign trademarks.

5) Similar Marks

As of March 1, 1998, the United Trademark System, which prohibited the owners of the trademarks that owns number of trademarks that are similar to one another from transferring some of their trademarks to a third party, was abolished. As a result, owners of the similar trademarks can now freely transfer some of their similar trademarks to any third party.

6) Protection of Pending Marks

In line with the Madrid Protocol, revisions to the Trademark Law confer the applicant the right to collect reasonable compensation from a third party for unauthorized use of the marks that are waiting to be registered.

7) Abolition of Substantive Examination on Renewal Application

Consistent with the Trademark Law Treaty which eschews any substantive examination of a renewal application, all renewal applications are now examined only on formality.

8) Adoption of Product Classification Conversion Application System

All renewal applications must now use newly adopted NICE International Classification system by lodging a Conversion Application together with a Renewal Application.

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