Patent registration in Korea

Patent is registered vibrant in Korea. South Korea is one of the world’s leading countries in the number of patent applications, demonstrating a focus on innovation and technological development. High-tech sectors such as electronics, telecommunications, biotechnology, and new energy are the focus of research and development activities in South Korea. The Korean government has been actively supporting innovation activities through preferential policies and investment in research and development. The Korean government prioritizes investment in research and development (R&D), facilitates patent activities, offers many financial support policies, tax incentives and intellectual property protection to be effectively implemented, encouraging individuals and businesses to participate in the creative process. Leading universities and research institutes attract a wide range of talent and create innovative research environments. In addition, the universities also organize international cooperation programs to help exchange knowledge and experience, improve research and development capacity. Korea also actively participates in free trade agreements and international cooperation in the field of science and technology. The exchange of knowledge, experience and technology with international partners helps to improve creative capacity and expand markets for patented products. Viet An Law would like to guide customers through the preliminary procedures for patent registration in Korea through the article below.

Legal basis

• Patent Law (amended to Act No. 19714 of September 14, 2023)

General overview of patents in Korea

Purpose of the patent registration system

The purpose of the patent system is to promote technological development through the protection, encouragement, promotion and use of patents, thereby contributing to the development of the industry. The publication of patents leads to the accumulation and use of technology as well as the advancement of industry.

Requirements for patenting

• A patent must have industrial applicability; It must be usable in industry.
• Technology must be novel; It must not be made public (existing technical condition) prior to application.
• Technology must take creative steps; It is not easily inferred from the existing technical condition, although it differs from the existing technical condition.

Validity and duration of patent rights

The term of the patent right begins when the establishment of the patent right is registered; It ends 20 years after the date of filing of the patent application. The validity of patent rights is subject to territorial principles; that is, it is valid only in the country where such rights are granted.

First applicant principle and first inventor principle

The first applicant principle and first inventor principle are two different principles that determine which applicant will be granted rights when two or more patent applications are filed for the same patent. The first applicant principle applies in Korea.

First Applicant Principle

Regardless of who invented the patent, the rights of an patent are vested in the first applicant filing an application at the patent office. If two or more applications for the same patent are filed on the same day, the applicants must consult with each other and try to reach an agreement on who can patent that patent. If no agreement is reached or a consultation is not possible, none of the applicants can be granted a patent for that patent.

The first applicant principle is practical because it grants rights to the cost of technology disclosure and encourages the rapid publication of patents. This principle is consistent with the purpose of the patent system as it aims to promote industrial progress through the rapid publication of patents.

First inventor principle

According to the first inventor principle, the rights of an patent are vested in the actual inventor, regardless of the order of application. This principle has the advantage of protecting inventors. Private inventors who don’t own businesses prefer this rule.

To apply this rule, the inventor must provide a document of the patent activities that led to the patent and ensure witnesses to the patent. The patent office must confirm the duration of the patent.

Patent application in Korea

Applicant

The inventor of an patent or assignee can file a patent application for that patent with KIPO. The applicant can be an individual or a legal entity.

Documents to prepare

• The patent application clearly states the full name and address of the inventor and applicant, the name of the patent and the priority data (if the right-of-way is requested);
• The description states the following: name of the patent; brief description of the drawings (if any); a detailed description of the patent;
• Drawings (drawings), if any;
• A patent brief;
• If priority rights are required, the priority document must be a certified copy of the priority application along with a Korean translation;
• Power of attorney, if the applicant applies through a representative

Request right-of-way

To be entitled to priority rights, an application must be filed in Korea within 1 year from the date of submission of the priority application. Priority documents can be submitted within one year and four months from the priority date. If priority documentation is not filed within that deadline, the priority request becomes null and void.

Patent Application Processing Process in Korea

Test form

When a patent application is filed with KIPO (Korea Intellectual Property Office), it will be checked to ensure that all the requirements necessary to grant the filing date have been met. If the application does not meet the basic form requirements (e.g., the type of application is unknown, there is no applicant’s name or address, it is not written in Korean, there is no description or drawing, or the application is filed without using an agent in Korea when there is no address in Korea),  The application will be returned.

After the application meets the requirements, KIPO will issue the application number and check whether other formal requirements under the Patent Law have been met. If documents or information are lacking, KIPO will ask the applicant for additional within the stipulated period. If this requirement is not complied with, the patent application will be canceled.

Due Diligence Requirements

A patent application will be submitted for appraisal only if there is a request for appraisal from the applicant or related party within 5 years from the date of filing. If there is no request for due diligence within this period, the patent application is deemed to have been withdrawn.

Public disclosure

Unpublished applications will be automatically published in the official gazette 18 months after the date of filing in Korea or from the priority date if priority rights are requested. Public disclosure can be made at the request of the applicant 18 months before the deadline for earlier protection of the patent application that is being infringed.

Content appraisal

In order for a patent to be registered under the Patent Law, it must meet the requirements outlined above as follows:

• Definition of patent under Patent Law
• Has novelty, industrial applicability and innovative step
• Not belonging to any type of patent that cannot be registered under Article 32 of the Patent Law.

Decide to apply

If the appraiser deems there to be reasons for denying the patent application, a preliminary notice of denial will be issued and the applicant will have the need to submit a response within the deadline specified by the appraiser. If there is no reason for refusal, the appraiser will grant the patent.

Register

When the applicant receives notice of the decision to grant a patent, the applicant must pay the registration fee within 3 months from the date of receipt of the notice.

Publication of the Gazette

KIPO publishes the patent registration after the applicant pays the registration fee. Any person can file a petition for cancellation of the patent registration within six months from the date of publication.

Fee to register a patent in Korea

Patent registration in Korea through PCT system

What is a PCT system?

The PCT system stands for  Patent Cooperation Treaty – an international treaty that aims to create a uniform process for filing international patent applications. The system is administered by the World Intellectual Property Organization (WIPO) and has more than 150 countries participating, including South Korea.

Benefits of PCT system:

• Time and cost savings: The PCT system allows applicants to file a single patent application for patent protection in multiple Treaty countries, instead of having to file a separate application in each country. This saves time, costs and administrative procedures.
• Postponement of national filing deadline: When filing a PCT application, the applicant has an additional 30 months to decide which country the applicant wants to protect the patent. This is valuable time for the applicant to assess the commercial potential of the patent and prepare for the national filing.
• Simplified Process: The PCT system uses a common set of rules and procedures for all participating countries, which simplifies the filing process and saves time for both the applicant and the national patent office.
• Early Search Information: The International Patent Search Office and Written Opinion will provide the applicant with information about the novelty and patentability of the patent, helping the applicant make an informed decision about the national filing.
• Strengthening international cooperation: The PCT system encourages international cooperation in the field of patents by creating a common platform for the exchange of information and sharing of experiences between countries.
• Innovation support: PCT systems help promote innovation by reducing the procedural burden on inventors and making it easier for them to protect their patents worldwide.

Patent application through PCT system

To file a patent application through the PCT system, you need to prepare a dossier that includes the following documents:

• PCT Application: Applications can be submitted in Vietnamese or English, however, it is recommended to be submitted in English to facilitate the processing process. You can download the PCT form from the WIPO website: https://www.wipo.int/pct/en/forms/
• Description of patent: The description of the patent should present details and clarity about the patent, including:
  • Patent Name Technical field
  • Patent summary
  • Detailed explanation of the patent
  • Drawings (if any)
  • Claims for protection
• Claim for protection: The claim should clearly define the scope of protection that the applicant wants for the patent.
• Patent Declaration: The patent statement should clearly identify the inventor (or inventors).
• Letter of Authorization (if applicable): If the applicant uses an intellectual property representative to file the application, the applicant should provide a Power of Attorney Letter authorizing the representative to represent the applicant on behalf of the applicant during the application process and processing the procedure.

Additional documents (may require):

• Priority Document (if applicable): If the applicant filed a patent application for the same patent in another country prior to filing the PCT application, the applicant may claim priority based on the filing date.
• Translation (if applicable): If any of the documents on file are not in English or French, the applicant needs to provide a translation into either of these languages.
• Application fee: The applicant needs to pay the PCT application fee to the International Reception Office (IB).

Patent registration service in Korea of Viet An Law Firm

• Perform the search and notify customers in writing the results of patent search in Korea;
• Drafting dossiers and directly submitting and monitoring the status of patent application filings in Korea on behalf of patent owners;
• Inform, advise and handle deficiencies/refusals of competent State agencies (if any) in the process of monitoring patent applications in Korea;
• Support monitoring, representing the resolution of objections and feedback with intellectual property representatives to carry out procedures in Korea.
• Receive dispatches, certificates and hand over to customers (if any).

If you need to file a patent application in Korea, please contact Viet An Law Firm for the most effective support.