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Appeals and Trials
KOREAN IP : APPEALS AND TRIALS
Trial against Ruling of Refusal or Revocation (Patent Law Article 132, Clause 3)
When an applicant has received a decision of rejection or revocation from an examiner, that person may demand an appeal within 30 days of the date of
receipt of the certified copy of the examiner's decision. A provision for exception is established in cases where a person resides in an area that is remote or difficult to access. The President of the Intellectual Property Tribunal may extend the time limit to 2 months for the benefit of a person in this situation.
With respect to a patent application filed on or after July 1, 2009, the applicant may make a request for reexamination or trial, selectively, following a
decision of rejection; however, the applicant is not allowed to make a request for reexamination once a request for trial has been submitted. (Article 67-2 of the Patent Act)
When a patent application has been reexamined at the request of the applicant and a decision of rejection is made by the examiner, the applicant
may appeal against such decision of rejection by filing a request for trial.
Under the reexamination before trial system, a patent application must be reexamined upon submission of amended specifications within 30 days after
the filing of a request for trial. However, as a request for reexamination system has been introduced, even if there has not been a request for trial, a patent application with the attached amendments to specifications or drawings may be reexamined by the examiner upon request of the applicant
Trial against Decision to Reject Amendment
When an applicant receives a decision of rejection on the basis of his/her amendments, he/she may demand an appeal within 30 days from the date
of receipt of the certified copy of the decision.
The 2001 Revised Patent Law provides that the then existing appeal against the examiner’s decision to reject the amendment be repealed and only
an appeal against a decision of rejection be allowed, in order to expedite the proceedings of examination and hearing (Article 51 of the Revised Patent Law, Clause 3, 2001, 7. 1).
The abovementioned provisions apply solely to pre-registered utility model applications filed from July 1, 2001 through September 30, 2006.
Trial against a Decision to Dismiss Application for Registration of Utility Model
The introduction of the Quick Registration System of Utility Models made it possible to register a utility model promptly after the basic requirement examination. This system allows applicants to demur to the
Intellectual Property Tribunal when their application for registration of a utility model has been dismissed as the result of a requirement examination.
Trial for Correction (Patent Law Article 136)
A patent holder may demand a trial for corrections to specifications or drawings for the following reasons only
to narrow a claim
to correct a clerical error
to clarify an ambiguous description.
However, this provision shall not apply where an opposition to the patent is pending.
This trial is intended to protect an invention by providing the opportunity for a patentee
to make corrections on the condition that there are not any unexpected losses or damages incurred upon any third parties.
When a trial decision stating that the corrected specifications or drawings of a patented invention become final and conclusive,
the patent application, the laying-open of the decision and the registration of the establishment of the patent right, shall be deemed to have been made on the basis of such corrected specifications or drawings.
Under the present provision, a trial for invalidation can be requested independently of a trial for correction.
With the purpose of accelerating the decision process, the 2001 Revised Patent Law prescribes that an
applicant under a trial for invalidation should not request a trial for correction simultaneously; instead it provides an opportunity for correction in the course of the trial for invalidation (effective as of July 1, 2001).
Trial for Invalidation of Correction (Patent Law Article 137)
An interested party or examiner may demand a trial for an invalidation of a correction, where the specifications
or drawings of a patented invention have been corrected in violation of Article 136.
When a decision that a correction of the specifications or drawings is to be invalidated becomes final and conclusive, the correction shall be deemed never to have been made.
Invalidation Trial of a Patent (Patent Law Article 133)
Due to a mistake of an examiner or appeal examiners, some patents which should not have been granted may exist.
In such cases, an interested party or examiner may demand a trial to invalidate the patent. For a patent containing two or more claims, a demand for a trial of invalidation may be made for each claim.
The reasons for invalidation of the patent are generally the same as reasons for the rejection of a patent application.
A trial for invalidation of a patent may be demanded even after the expiration of the patent right. Where a trial decision invalidating
In such cases, an interested party or examiner may demand a trial to invalidate the patent. For a patent containing two or more claims, a demand for a trial of invalidation may be made for each claim.
Trial to Confirm the Scope of a Patent Right (Patent Law Article 135)
A patentee or an interested person may demand a trial to confirm the scope of a patent right. When a trial is demanded to
confirm the scope of a patent right, the confirmation shall apply to each claim if the patent contains two or more claims.
Invalidation Trial of Registration for Extension of Term of Patent Right (Patent Law Article 134)
Refers to the quasi-judicial administrative procedure to invalidate the registration for extension of the term of a patent right, due to any defect in the registration measure.
Trial for Granting Non-Exclusive License (Patent Law Article 138)
When a patentee requires the use of the patent right of a prior patentee to operate his/her patented invention, or when the prior
patentee refuses to grant permission to use the patent right without justifiable reasons, the later patentee may request a trial for the granting of a non-exclusive license. To make such a request, it is required that the patented invention, of the later patentee, should constitute a substantial technical advance in comparison with the patented invention or registered utility model of the prior patentee.
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