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Korean IP System

 

Overview

 

History of the Korean patent system

  • 1908:The Patent Decree laid the foundation in Korea for institutionalizing intellectual property

  • 1946:The Patent Institute was established and patent laws were enacted

  • 1961:The patent laws were divided into four industrial property laws: the Patent Act, the Utility Model Act, the Trademark Act, and the Design Act

  • 1977:The Korean Intellectual Property Office (KIPO) was established as an independent office under the Ministry of Commerce, Industry and Energy

  • 1979:Korea joined the World Intellectual Property Organization (WIPO)

  • 1980:Korea joined the Paris Convention

  • 1984:Korea joined the Patent Cooperation Treaty

 

What is a patent?

Purpose of the patent system

  • The purpose of the patent system is, to accelerate the development of technology though the protection, encouragement, promotion, and utilization of inventions, and thereby contribute to the development of industry.

  • The publication of inventions leads to the accumulation and utilization of technology and the advancement of industry.

  • Granting exclusive rights for the commercial usage of a patented invention promotes commercialization, encourages the development of inventions, and leads to the advancement of industry

 

Requirements for acquiring patent rights

  • A patent must have industrial applicability; it must be usable in industry.

  • The technology must have novelty; it must not be known to the public (prior art) before an application is submitted.

  • The technology must have an inventive step; it must not be easily derivable from prior art, even though it differs from prior art.

 

Effect and term of a patent right

  • The term of a patent right commences when the establishment of patent right is registered; it ends 20 years after the filing date of the patent application. The corresponding term for a utility model is 10 years.

  • The effect of a patent right is subject to the principle of territoriality; that is, it is valid only in the country where the right is obtained.

 

Information on patent applications

The first-to- file rule and the first-to-invent rule

  • The first-to-file rule and the first-to-invent rule are two different principles for determining which applicant is granted the rights when two or more patent applications are filed for the same invention. The first-to-file rule applies in Korea.

 

First-to-file rule

  • Regardless of who invented the invention, the rights of an invention are given to the first to file the application at the patent office. If two or more applications for the same invention are filed on the same date, the applicants must consult with one another and try to come to an agreement on who may obtain a patent for the invention. If no agreement is reached or no consultation is possible, none of the applicants can obtain a patent for the invention.

 

  • The first-to-file rule is practical because it grants rights for the cost of disclosing the technology and it encourages swift disclosure of inventions.

 

  • This rule is in accordance with the purpose of the patent system because it aims to promote industrial advancement through the swift disclosure of inventions.

 

First-to-invent rule

  • Under the first-to-invent rule, the rights of an invention are given to the actual inventor, regardless of the order in which applications are filed.

 

  • This rule has the strength of protecting inventors. Private inventors who don't own an enterprise prefer this rule.

 

  • To benefit from this rule, the inventor must provide a journal of the inventive activities that led to the invention and secure witnesses of the invention. The patent office must confirm the time of the invention.

 

Inventions and devices

  • A patent right is granted for inventions, while utility model rights are granted for devices

  • Under the Patent Act, an invention has a higher degree of technology than a device.

  1. Definition of invention: a highly advanced creation of a technical idea using the rules of nature

  2. Definition of device: a creation of a technical idea using the rules of nature

  3. However, the degree of advancement is subjective, and applicants can make that assessment themselves.

  4. In other words, a creation filed as a utility model is deemed to be a device, while a creation filed as a patent is deemed to be an invention.

IP Expert Group DAEILPAT, 1404, Byucksan Digital Vally 7th, Gurodong 170-13, Gurogu, Seoul, Repulic of Korea

Tel: +82-2-554-3026/ Fax: +82-2-554-3028

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