Filing an Application

Ⅰ) Applicant

Either the deviser of an device or his or her assignee can file a utility model application for the device with KIPO. The applicant may be either a natural person or a juristic person.

Ⅱ) Document Required

A person who desires to obtain a utility model must submit to the commissioner of KIPO the following documents:

⒜ an application stating the name and address of the deviser and the applicant(including the name of a

representative, if the applicant is a juristic person), the date of submission, the title of the device, and priority date(if the right of priority is claimed):

⒝ a specification setting forth the following matters:

the title of the device: a brief description of drawings(if any): a detailed description of the device: and claim(s):

⒞ drawing(s),

⒟ an abstract:

⒠ if the right of priority is claimed, the priority document which is a certified copy of the priority application together

with its Korean translation: and

⒡ a power of attorney, if necessary.

Ⅲ) Claim of Priority

In order to enjoy the priority right, an application should be filed in the KIPO within 1 year from the filing date of the priority application(priority date). The priority document above mentioned may be submitted within one year and four months from the priority date. If the priority document is not submitted within that period of time, the claim of priority is considered not to have been claimed.

Formality Examination

When utility model application is submitted to KIPO, it is checked that all requirements necessary to accord the application a filing date have been satisfied, Under the Article 7(1) of the Enforcement Regulation of Utility Model Law, in any of the following instances the application will be returned to the submitter without any application number being assigned there to and will be treated as if it had never been submitted:

⒜ the kind of the application is not clear;

⒝ the name or address of a person(or juristic person) who is initiating the procedure is not described;

⒞ the application is not written in Korean;

⒟ Where the application is not accompanied by the specification/claims or drawings

⒠ Where the application is submitted, by a person who has no address or place of business in the Republic of Korea, without using an agent in the Republic of Korea.

Once the application has satisfied the requirements, KIPO assigns an application number and examines as to whether or not other formality requirements under Utility Model Law have been met, if KIPO discovers that a document or information is missing, such as a power of attorney or the name of the representative of a juristic person, it will issue a notice of amendment requesting the applicant to supplement the missing data, within the specified time limit. The applicant may obtain an extension of the designated time period.

If the applicant does not comply with such a request with in the designated or any extended period, application will be nullified and then considered as having never been filled.

Publication of the Application

Applications that have not yet been published will be automatically laid-open in the official gazette called "utility model Laid-open Gazette" after 18 months from the filing date in the Republic of Korea or, if the right of priority is claimed from an earlier foreign filing, from the priority date.

The laid-open publication may be made, upon the request of the applicant, prior to the eighteen month period. This will provide an earlier protection to a utility model application which is being infringed.

Once a utility model application has been laid-open, any documents relating to the application are made available for public inspection. Any person may submit to the Commissioner of KIPO information relevant to the patentability of the utility model concerned together with any supporting evidence. (Information can be provided before a utility model application is laid-open)

The Patent Act offers a special legal effect upon a laid-open utility model application: if the applicant sends a warning letter to an alleged infringer after his application has been laid-open, any subsequent computation of a reasonable amount of compensation will be reckoned from the date when the infringer receives the warning letter. The right to claim compensation cannot be exercised before the relevant patent right is registered.

Substantial Examination

Ⅰ) Request for Examination

A utility model application will be taken up for examination only if a request for examination is made either by the applicant or by any interested party within 3 years from the filing date of the application. If no request for examination is made within this three-year period, the utility model application is deemed to have been withdrawn. Once a request for examination has been duly filed, it cannot be withdrawn. A utility model application is taken up for examination in the order of filing the request for examination therefore.

Ⅱ) Requirement for Registration

For a patent to be registered under the Patent Law, it should meet the following requirements;

⒜ It should fall under the definition of utility model under the utility model Law

⒝ It should have Novelty, and Inventive Step

Rejectiom

If a examiner finds a ground for rejection of a utility model application, a notice of preliminary rejection will be issued; and the applicant will be given an opportunity to submit a response to the preliminary rejection within the time limit designated by the examiner. Such time limit is extendable to the request for an extension by the applicant.

In responding to the preliminary rejection, the applicant may file an argument with or without an amendment to the specification and/or claims. If the examiner determines that the argument is without merit and the ground for rejection has not been overcome, he will issue a notice of final rejection of the utility model application.

Converted Application

The applicant who has first filed a patent application has the opportunity to convert the patent application to a utility model application. On the other hand, the applicant who has first filed utility model application and wishes to prolong the term of duration of right has the opportunity to convert the utility model application to a patent application.

The applicant must be the same as the applicant of the original application. The decision whether the both applicants are identical follows the usual procedure for similar cases.

Converted application can not be filed more than 30 days after the transmittal of the first decision to reject the utility model application.

Publication

Where the examiners finds no grounds for refusal of a utility model application, KIPO publishes the utility model registration after the utility model applicant pays the registration fee.

Appeal and Trial

The applicant may lodge an appeal against the examiner's final rejection within 30 days from the date of receipt of the notice of final rejection. Any party which doubts the validity of a right may request a trial for invalidation of utility model.

Such appeal and trial procedure are conducted in the Industrial Property Tribunal which was established by merging the former Trial Board and Appeal Board as of March 1, 1998 in KIPO.

The Industrial Property Tribunal's decision may be appealed to the Patent Court which was also established as an appellate level court and has been operating from March 1, 1998.

An appeal against the Patent Court's decision may be reviewed by the Supreme Court.