Patent
Act
CHAPTER
I
GENERAL
PROVISIONS
Article
1 【Purpose】
The
purpose of this Act shall be to encourage, protect and utilize
inventions, thereby improving and developing technology, and to
contribute to the development of industry.
Article
2 【Definitions】
The
definitions of terms used in this Law shall be as follows:
(i)
"invention" means the highly advanced creation of technical ideas
utilizing rules of nature;
(ii)
"patented invention" means an invention for which a patent has
been granted; and
(iii)
"working" means any one of the following acts:
(a)
in the case of an invention of a product, acts of manufacturing,
using, assigning, leasing, importing, or offering for assigning or
leasing (including displaying for the purpose of assignment or
lease) the product;
(b)
in the case of an invention of a process, acts of using the
process; and
(c)
in the case of an invention of a process of manufacturing a
product, acts of using, assigning, leasing, importing, or offering
for assigning or leasing the product manufactured by the process,
in addition to the acts mentioned in subparagraph (b).
Article
3 【Capacity
of Minors, etc.】
(1)
Minors, limited competents and incompetents shall not initiate the
procedure for filing an application, requesting an examination, or
any other patent-related procedure (hereinafter referred to as
"patent-related procedure") unless represented by their legal
representatives. However, this provision shall not apply where a
minor or a limited competent can perform a legal act
independently.
(2)
The legal representative as referred to in paragraph (1) may,
without the consent of the family council, act in any
patent-related opposition, trial, or retrial procedures initiated
by another party.
(3)
Patent-related procedures, initiated by a person who lacks the
requisite power of legal representation or competence or
delegation necessary to initiate any such procedures, shall have
retroactive effect if said procedures are ratified by a person
having such power of representation or competence.
Article
4 【Associations,
etc., Other than a Legal Entity】
A
representative or an administrator, who has been so designated by
an association or a foundation which is not a legal entity, may
make a request for examination of a patent application, file an
opposition to the grant of a patent, or appear as a plaintiff or
defendant in a trial or a retrial in its association or
foundation name.
Article
5 【Patent
Administrator for Nonresidents】
(1)
A person who has neither an address nor a place of business in the
Republic of Korea (hereinafter referred to as a "nonresident") may
not, except in cases where a nonresident (or a representative
thereof if a legal entity) is sojourning in the Republic of
Korea, initiate any patent-related procedure, nor appeal any
decision taken by an administrative agency in accordance with this
Law or any decree thereunder, unless he is represented by an agent
with respect to his patent, who has an address or a place of
business in the Republic of Korea (hereinafter referred to as a
"patent administrator").
(2)
The patent administrator shall, within the scope of powers
conferred on him, represent the principal in all procedures
relating to a patent and in any appeal against a decision taken by
an administrative agency in accordance with this Law or any decree
thereunder.
(3) Deleted.
(4) Deleted.
Article
6 【Scope
of Powers of Attorney】
An
agent who is instructed to initiate a patent-related procedure
before the Korean Intellectual Property Office by a person who is
domiciled or has his place of business in the Republic of Korea
shall not, unless expressly so empowered, abandon or withdraw an
application for a patent, withdraw an application for registration
of an extension of the term of a patent right, abandon a patent
right, withdraw a petition, withdraw a request for a motion,
make or withdraw a priority claim under Article 55(1), request for
a trial under Article 132ter, or appoint a
sub-representative.
Article
7 【Proof
of Powers of Attorney】
An
agent (including a patent administrator, the same being applicable
hereafter) of a person who is initiating a patent-related
procedure before the Korean Intellectual Property Office
shall present written proof of his power of attorney.
Article
8 【Non-extinguishment
of Powers of Attorney】
A
power of attorney of an agent of a person initiating a
patent-related procedure shall not be extinguished upon the death
or loss of legal capacity of the principal, the extinguishment of
a legal entity of the principal due to a merger, the termination
of the duty of trust of the principal, the death or loss of legal
capacity of the legal representative, or the modification or
extinguishment of his power of attorney.
Article
9 【Independence
of Representation】
Where
two or more agents of a person initiating a patent-related
procedure have been designated, each of them shall independently
represent the principal before the Korean Intellectual Property
Office or the Intellectual Property Tribunal.
Article
10 【Replacement
of Agents, etc.】
(1)
If the Commissioner of the Korean Intellectual Property Office or
the presiding trial examiner considers that a person initiating a
patent-related procedure is not qualified to conduct such a
procedure or make oral statements, etc. he may order, ex officio, the
appointment of an agent to conduct the procedure.
(2)
If the Commissioner of the Korean Intellectual Property Office or
the presiding trial examiner considers that the agent of a person
initiating a patent-related procedure is not qualified to conduct
such a procedure or make oral statements, etc. he may order, ex officio, the
replacement of the agent.
(3)
The Commissioner of the Korean Intellectual Property Office or the
presiding trial examiner may, in the case referred to in paragraph
(1) or (2) of this Article, order the appointment of a patent
attorney to conduct the procedure.
(4)
The Commissioner of the Korean Intellectual Property Office or the
presiding trial examiner may invalidate any action taken before
the Korean Intellectual Property Office or the Industrial Property
Tribunal by the person initiating the patent-related procedure
referred to in paragraph (1) of this Article or by the agent
referred to in paragraph (2), of this Article prior to the
appointment or the replacement of the agent, referred to under
paragraph (1) or (2), respectively, after the issuance of an order
referred to under paragraph (1) or (2).
Article
11 【Representation
of Two or More Persons】
(1)
Where two or more persons jointly initiate a patent-related
procedure, each of them shall represent the joint initiators
except for actions falling under any of the following
subparagraphs; however, this provision shall not apply where those
persons have appointed a common representative and have notified
the appointment of the representative to the Korean Intellectual
Property Office or the Industrial Property Tribunal:
(i)
abandonment or withdrawal of a patent application or withdrawal of
an application for registration of an extension of term of a
patent right;
(ii)
withdrawal of a petition; claim or withdrawal of a priority claim
under Article 55(1);
(iii)
withdrawal of a request; and
(iv)
request for a trial under Article 132ter.
(2)
Where the common representative has been appointed and notified
under the provision of paragraph (1), a written proof of the fact
that the representative has been appointed shall be
presented.
Article
12 【Mutatis
Mutandis Application of Provisions of
the
Code of Civil Procedure】
Except
where there is an express provision relating to agents in the
Patent Law, the provisions of Part I, Section 2, Subsection 4 of
the Code of Civil Procedure shall apply mutatis mutandis to agents
under this Law.
Article
13 【Venue
of Nonresidents】
If
a nonresident has appointed a patent administrator with respect to
his patent right or other right relating to a patent, the domicile
or place of business of the patent administrator shall be
considered to be that of the nonresident. Where there is no such
patent administrator, the location of the Korean Intellectual
Property Office shall be regarded as the seat of the property
under Article 9 of the Code of Civil Procedure.
Article
14 【Calculation
of Time Limits】
The
time limits provided for in the Patent Law, or any decrees
thereunder shall be calculated as follows:
(i)
the first day of the period shall not be counted unless the period
starts at midnight;
(ii)
if the period is expressed in months or years, it shall be counted
according to the calendar;
(iii)
if the start of the period does not coincide with the beginning of
a month or year, the period shall expire on the day preceding the
date in the last month or year of the period corresponding to the
date on which the period started; however, if there is no
corresponding day in the last month, the period shall expire on
the last day of that month; and
(iv)
if the last day of a period for executing a patent-related
procedure falls on an official holiday, including Labor Day,
designated by the Labor Day Designation Law, said period shall
expire on the working day following such holiday.
Article
15 【Extension
of Time Limits, etc.】
(1)
The Commissioner of the Korean Intellectual Property Office or the
President of the Industrial Property Tribunal may extend, for the
benefit of a person residing in an area that is remote or
difficult to access, the period for submitting an amendment of
grounds for opposition according to Article 70(1) or the period
for demanding a trial under Article 132ter upon a request or ex officio.
(2)
When the Commissioner of the Korean Intellectual Property Office,
the President of the Industrial Property Tribunal, a presiding
trial examiner or an examiner has designated a time limit for a
patent-related procedure to be initiated under the Patent Law,
extend it upon a request or ex officio.
(3)
When a presiding trial examiner or an examiner has designated a
date for initiating a patent-related procedure under the Patent
Law, he may change the date upon a request or ex officio.
Article
16 【Invalidation
of Procedure】
(1)
When a person who has been notified to make an amendment in
accordance with Article 46 fails to do so within the designated
time limit, the Commissioner of the Korean Intellectual
Property Office or the President of the Industrial Property
Tribunal may invalidate the procedure relating to the patent. However, where a person
who has been notified to make an amendment for not paying the fees
for a request for examination under Article 82(2) fails to pay
said fees for the request for examination, the Commissioner of the
Korean Intellectual Property Office or the President of the
Intellectual Property Tribunal may invalidate the amendment to the
specification attached to the patent application.
(2)
When a patent-related procedure has been invalidated under
paragraph (1), if the delay of the time is deemed to have been
caused by reasons not imputable to a person who received an
invitation to amend, the Commissioner of the Korean
Intellectual Property Office or the President of the Intellectual property Tribunal may revoke a disposition of
invalidation at the request of a person who received an invitation
to amend within fourteen days from the date on which the
reasons for the delay ceased to exist. However, this
provision shall not apply where one year has elapsed after the designated period expires.
Article
17 【Subsequent
Completion of Procedure】
If
a person who initiated a patent-related procedure has failed to
observe the time limit for requesting a trial under Article 132ter, or the
time limit for demanding a retrial under Article 180(1) for
reasons beyond his control, he may subsequently complete the
procedure that he failed to conduct within fourteen days
after said reason ceases to exist. However, this provision
shall not apply in a case where one year has elapsed after said
period expires.
Article
18 【Succession
of Procedural Effects】
The
effects of a procedure taken in relation to a patent or other
right relating to a patent shall extend to the successor in
title.
Article
19 【Continuation
of Procedure by Successor】
Where
a patent right or other right relating to a patent is transferred
while a procedure relating to the patent is pending before the
Korean Intellectual Property Office or the Intellectual Property Tribunal, the Commissioner of the Korean Intellectual
Property Office or the presiding trial examiner may require the
successor in title to continue the procedure relating to the
patent.
Article
20 【Interruption
of Procedure】
If
any patent-related procedure pending before the Korean
Intellectual Property Office or the Intellectual Property
Tribunal falls under any of the following subparagraphs, it shall
be interrupted, unless there is a representative authorized to
conduct the procedure:
(i)
when the party involved has died;
(ii)
when the legal entity involved has ceased to exist by reason of
merger;
(iii)
when the party involved has lost the ability to conduct the
procedure;
(iv)
when the legal representative of the party involved has died or
lost his power;
(v)
when the commission of a trustee given by the trust of the party
involved has terminated; or
(vi)
where the representative as provided in the provisions of Article
11(1) has died or lost his qualification.
Article
21 【Resumption
of an Interrupted Procedure】
When
a procedure pending in the Korean Intellectual Property Office or
the Intellectual Property Tribunal has been interrupted in
the manner referred to in Article 20, any person who falls under
any of the following subparagraphs shall resume the
procedure:
(i)
in the case as provided for under Article 20(i), the deceased
person's successor, administrator of inheritance, or other person
authorized to pursue the procedure under the Law; however, the
deceased person's successor may not resume the procedure until
such time as his right to succession is no longer subject to
renunciation;
(ii)
in the case as provided for under Article 20(ii), the legal entity
established by or existing after the merger;
(iii)
in the cases as provided for under Article 20(iii) and (iv), the
party whose ability to take the necessary procedure has been
restored or any person who becomes the legal representative of the
party, respectively;
(iv)
in the case as provided for under Article 20(v), a new trustee;
and
(v)
in the case as provided for under Article 20(vi), a new
representative or each joint initiator involved.
Article
22 【Request
for Continuation】
(1)
The request for continuation of an interrupted procedure under
Article 20 may be made by an opposing party.
(2)
When a request for continuation of an interrupted procedure
interrupted under Article 20 is made, the Commissioner of the
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