The current Korean Patent Act (KPA) adopts a pre-appeal reexamination system, under which if an applicant receives a final rejection, he or she can file a request for reexamination, along with an amendment of the application, with the KIPO within thirty (30) days from the receipt of the final rejection. That is, the applicant does not have to file an appeal to the Intellectual Property Tribunal (IPT) to dispute an Examiner‘s final rejection. Further, if the application is rejected again as a result of the reexamination, the applicant can file an appeal with the IPT to continue the prosecution. Under the old KPA, no other way was available to dispute an Examiner’s final rejection except instituting an appeal before the IPT.

Pre-appeal reexamination applies to patent applications filed on or after July 1, 2009. Since a Korean patent application usually takes about two years from the date of examination request to receive a final rejection, the new system is expected to be actively utilized from the middle of 2011.

A patent is established upon payment of a registration fee within three (3) months from the receipt date of a Decision of Patent Grant.

Yes. An applicant may abandon some of the granted claims in order to reduce the registration fee and annuities. For such abandonment, the applicant should submit a written abandonment while paying the registration fee for the remaining claims.

Yes. There is a six-month grace period after the lapse of a regular due date. During the grace period, the patentee is required to pay a surcharge.

A Deed of Assignment executed by the assignor;

A notarized Nationality Certificate of the assignor;

A Power of Attorney executed by the assignee; and

A Power of Attorney executed by the assignor

A patent right shall come into force upon the registration of its establishment, which is effected upon payment of the Patent Issue Fees covering the first three (3) years. Thus, it is from the date the Patent Issue Fees are paid that actions infringing the patent become actionable. The payment of the above must occur within three (3) months from the date of receipt of a Decision to Grant Patent. Once so paid, the term for the subject patent right shall be twenty (20) years from the Korean filing date (or, for a PCT application, from the international filing date).

Court actions for infringement may be filed only after the establishment of the patent rights (by means of payment of the Patent Issue Fees).

A court action shall duly be filed within three (3) years after the patentee, or its legal representative, has become aware of the infringement and the infringer as well, in order to demand from an infringer the compensation of damages. Such court action, however, may not be filed if ten (10) years have elapsed since the occurrence of the infringement.

Yes. The Korean courts adopt such interlocutory injunctions or preliminary injunctions, i.e., court orders for the provisional prohibition of production, sale, export, procurement and/or advertisement of products infringing a patent right. A patentee may seek a provisional disposition under the Code of Civil Procedure, in respect of allegedly infringing articles, and this remedy may be exercised before or after the primary infringement litigation action is filed.

After the grant of such a preliminary injunction by the relevant District Court, chances are strong that the infringer will admit its infringements and comply with the demands of the patentee. However, Korean law does not obligate the patentee (plaintiff) to duly notify the infringer of the fact that it is aware of the infringement.

In contrast to a U.S. practice of pretrial discovery, there is no pretrial discovery practice under the Korean Code of Civil Procedure.

The success of a litigation action is, in principle, left up to the evidence collected and presented that duly supports and illustrates the merits of the legal arguments concerned. Korean courts generally have a reputation for being fair and balanced.