Korean IP Information: Patent Rights

Definition

A patent right is an Intellectual Property right where a patent holder receives protection in their invention for a certain statutory period of time. This right may be used as a competitive tool and gives a competitive edge over other competitors. Patent rights in an invention are not given automatically, but rather are earned through properly filing and registering a patent application through the Patent Office.

Individuals Entitled to Receive Patent Rights

Generally, the inventor of an invention receives rights to a patent. However, even non inventors of an invention may obtain patent rights in an invention through assignment of rights.

Patentable Subject Matter

A highly advanced creation of a technical idea using the rules of nature (Patent 2)

A patent requires that the invention have industrial applicability, be novel, and have an inventive step over prior art.

Every invention is different in some sort and therefore every invention should be separately determined whether able to satisfy the requirements for a patent. It is also necessary to search prior art before deciding whether or not to proceed with filing a patent application.

Requested Documents at the Time of Filing

A patent application form, a patent specification, drawings (if necessary), power of attorney, filing fees, biographical data of the inventor.

Patent Examination

A patent application is not examined by a mere filing of the application. Rather, a request for examination is submitted in order to have the application examined. Applications are examined in the order in which the request for examination was requested.

During the prosecution of a patent application, a patent examiner may reject or object the application with an office action detailing the terms of the rejection or objection.

Various methods are used in order to overcome an office action, such as an opinion letter, amendment, divisional, or converted application. If the examiner still believes that the application should be denied, a patent will not issue and a final rejection/objection is made. The applicant of the patent application may take other avenues to overcome this by either obtaining a decision by the Korean Intellectual Property Tribunal; obtaining a decision by the Patent Court of Korea and a judgment by the Supreme Court of Korea; or a decision by the Korean Intellectual Property Tribunal, then a decision by the Patent Court of Korea and thereafter a judgment from the Supreme Court of Korea. On the other hand, if all requirements are met, a patent shall issue.

Accelerated Examination System

In cases where after the application is filed and an invention has been commercially worked by a person who is not on the application, after the application has been laid open, if there is a statutory emergency need for an expedited request for examination that would take the application out of turn, an accelerated examination is available.

An accelerated examination is also possible in the following situations.

- Defense related inventions
- Prevention of environmental pollution
- Inventions directly related to promoting exports
- The invention is made officially by an employee of the central government, a local government
- Patent applications that the KIPO Commissioner and the heads of patent offices in other countries agreed to examine on a priority basis
- Applications about which anyone requests one of the KIPO-approved agencies to conduct prior art searches, etc.

Patent Registration Procedures

Once the application is approved and decided and specific funds are paid within a given period of time, a patent will issue and patent rights are given.

Patent Maintenance Fees

Patent maintenance fees are required and failure to pay may result in losing patent rights.

Initial maintenance fee payment for the first 3 years-within 3 months after a patent receives a notice of allowance, the initial maintenance fee for the initial 3 years is required. If the maintenance fee is not paid within the 3 month period, an additional 6 months are given to satisfy payment. However, in such cases, fees will double.

Starting with the 4th year, the registrant is required to pay maintenance fees voluntarily.

Protection Period

20 years from the date of filing the patent application.