The intellectual property rights (IPR) trial system in Korea follows a three-instance procedure, comprising the Korean Intellectual Property Tribunal (KIPT), the Patent Court, and the Supreme Court. Its purpose is to promote and strengthen the protection of IPR while guaranteeing fair and prompt settlements of IPR-related disputes.
Ex Parte Cases
Appealing a Refusal or Revocation Ruling (Patent Law Article 132ter)
If an individual receives a rejection or revocation decision from an examiner, they have the right to appeal within 30 days from the date they receive the certified copy of the examiner's decision. However, an exception is made for individuals residing in remote or inaccessible areas. In such cases, the President of the Industrial Property Tribunal may extend the time limit to 2 months for their benefit.
Re-examination Prior to Appeal (Patent Law Article 173)
Before an appeal is filed, there is a re-examination process conducted by an examiner. This process takes place when an amendment of specifications or drawings is submitted within 30 days after a request for an appeal against a refusal ruling under Article 132ter.
Appealing a Decision to Reject an Amendment (Patent Law Article 132quater)
If a person receives a decision to reject their amendments, they have the right to appeal within 30 days from the date they receive the certified copy of the decision.
The system for requesting a trial against a decision to reject an amendment was abolished by the Revised Patent Law in 2001 (effective from July 1, 2001).
The Revised Patent Law does not provide a way for applicants to object to a decision to decline an amendment. Instead, it introduces a new provision for "Appeal against Examiner's Decision of Refusal" (Revised Patent Law Article 51, Clause 13).
Appealing a Decision to Dismiss a Utility Model Registration Application (Revised Utility Model Law Article 54.2)
The Quick Registration System of Utility Model allows for the prompt registration of a utility model after a basic requirement examination. Under this system, applicants have the right to appeal to the Industrial Property Tribunal when their utility model registration application has been dismissed following the requirement examination.
Inter Parte Cases
Invalidation Trial of a Patent (Patent Law Article 133)
In some cases, patents that should not have been granted may exist due to mistakes made by examiners or appeal examiners. In such instances, an interested party or an examiner can request an invalidation trial to declare the patent invalid. For patents with multiple claims, a separate demand for an invalidation trial can be made for each claim. The grounds for invalidation of the patent are generally the same as the reasons for rejecting a patent application. It is important to note that an invalidation trial can be requested even after the expiration of the patent right. If a trial decision invalidating a patent becomes final and conclusive, the patent right is considered never to have existed. However, if a patent is invalidated based on reasons that arose after the grant of the patent, the patent right is deemed not to have existed from the time the reason originated.
Trial to Confirm the Scope of a Patent Right (Patent Law Article 135)
A patentee or an interested party has the right to request a trial to confirm the scope of a patent right. When such a trial is demanded, the confirmation applies to each claim if the patent contains two or more claims.
Trial for Correction (Patent Law Article 136)
A patent holder can request a trial for corrections to the specifications or drawings of a patent, but only for the following reasons: i) to narrow a claim, ii) to correct a clerical error, or iii) to clarify an ambiguous description. However, this provision does not apply if there is an ongoing opposition to the patent. The purpose of this trial is to protect an invention by allowing the patentee to make necessary corrections, as long as no unexpected losses or damages are caused to third parties. When a trial decision stating that the specifications or drawings of a patented invention are to be corrected becomes final and conclusive, the patent application, the publication of the decision, and the registration of the patent right are considered to have been made based on the corrected specifications or drawings. It is important to note that a trial for invalidation can be requested independently of a trial for correction. To expedite the decision-making process, the 2001 Revised Patent Law specifies that an applicant under an invalidation trial should not simultaneously request a trial for correction, but it does provide an opportunity for correction during the course of the invalidation trial (effective from July 1, 2001).
Trial for Invalidation of Correction (Patent Law Article 137)
If the specifications or drawings of a patented invention have been corrected in violation of Article 136, an interested party or an examiner can demand a trial to invalidate the correction. When a decision invalidating a correction of the specifications or drawings becomes final and conclusive, the correction is considered to have never been made.
Invalidation Trial of Registration for Extension of the Term of a Patent Right (Patent Law Article 134)
This refers to a quasi-judicial administrative procedure aimed at invalidating the registration for extension of the term of a patent right (as outlined in Patent Law Article 134-3) if there are any defects in the registration process.
Trial for Granting a Non-exclusive License (Patent Law Article 138)
If a later patentee needs to utilize the patent right of a prior patentee in order to work their own patented invention, or if the prior patentee unreasonably denies permission to use the patent right without justifiable reasons, the later patentee has the right to request a trial for the grant of a non-exclusive license. To make such a request, it is necessary for the patented invention of the later patentee to represent a significant technical advancement compared to the patented invention or registered utility model of the prior patentee.
DAEILPAT
DAEILPAT has a wealth of experience in legal matters related to intellectual property, including litigation, rights evaluation, correction permits, cancellations, appeals, and objections. We provide comprehensive assistance to foreign companies entering the Korean market and guide them through the intricacies of the local legal system.
In the field of patents, DAEILPAT has successfully handled litigations across various industries and technologies. Our expertise extends to areas such as filtration devices, communications, software, computers, automotive, construction and building, office automation equipment, and commodities.
When it comes to protecting your intellectual property in Korea, DAEILPAT is your trusted partner. We understand the unique challenges foreign companies face and provide tailored solutions to safeguard your patents, utility models, designs, and trademarks. Our team is well-versed in handling infringement warnings, examination activities, appeals, and final appeals, ensuring the best possible outcomes for your business.
Learn more about IP Disputes Resolution in Korea
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Read more:
- Utility Model System in Korea
- Copyright Protection in Korea for Works of Foreigners
- Protecting Trade Secrets in Korea
- Patent and Trademark Litigation in Korea
- Patent and Trademark Trial System in Korea
