KIPO (the Korean Intellectual Property workplace) has promulgated some brand new Enforcement guidelines through the Korean Patent Act (« KPA »), effective March 30, 2020. The enforcement that is new earn some modifications to Korean patent practice such as for example leisure of formality demands for Korean patent actions, patent markings, and 3rd party challenges regarding pending patent applications. A number of the changes that are notable talked about below:
Formality Needs Relaxed For Korean Patent Applications – Making It Simpler To Acquire Priority Date
Presently, you can easily register a patent application in Korea with just the specification and without having the claims. Article 42-2 KPA. The applicant will then have fourteen months from filing the application that is original prepare the claims. Nevertheless, to be able to register with no claims, the specification had a need to satisfy all the formality needs e.g., consist of name of innovation, high tech, brief description of drawings, step-by-step description for the embodiments, etc. appropriately, although a patent application could possibly be filed without claims (just like US provisional applications), what’s needed about the specification remained burdensome.
The amended Enforcement Rules associated with the Korean Patent Act (« Amended Rules ») decreases the formality demands for the specification elite magazine. The specification may be substituted with any publication that merely identifies the applicantвЂ™s invention under the Amended rules. As an example, a academic article or a research note could be enough. In addition, the existing KPA permits the initial specification to be filed in English. Which means that A english educational article or research paper need not be translated into Korean during the time of filing. Therefore, a concern date can be had with even less expenses.
But, a job candidate who obtains a concern date without filing any claims or employing a spanish specification must register the claims and/or the Korean translation within fourteen months regarding the earliest concern date. Failure to do this can lead to the patent application being thought to have now been withdrawn.
Patent Marking Demands
In Korea, patent marking isn’t needed to get damages. The patentee can look for damages through the patent grant date (set alongside the United States where damages are calculated from date of real or constructive knowledge). As a practical matter, in Korea, patent marking is employed primarily for advertising purposes, which can be used during the patentee’s choice (in the place of a formal appropriate advantage).
Article 223 associated with KPA provides some needs or guidelines regarding simple tips to mark something with all the patent quantity ( ag e.g., by indicating « Patent » or « Method Patent » together with all the patent number(s) or by indicating « Patent Application (under assessment) » or » Method Patent Application (under examination) » alongside the patent application number(s)). Additionally, Article 121 regarding the Enforcement Rules associated with the KPA enables digital marking, i.e., marking of something with a hyperlink to a web site showing the menu of relevant patents and patent applications.
Now, Article 121 of Amended Rules provides more guidelines that are specific. For instance, Article 121 for the Amended Rules stipulates that « Patent » or « Method Patent » utilized in patent markings might be labeled in English (including abbreviation that is english or Chinese. Furthermore, a club code or code that is QR be properly used as a method for digital marking. Further, Article 121 associated with the Amended Rule stipulates just how to mark the termination associated with patent right and sets forth sanctions for false marking (patent marking/indications which could mislead customers into convinced that articles is included in a patent if you find no given patent/pending application). Particularly, the Amended Rule stipulates that when the marking/indications are believed as false marking, the Korea Intellectual Property Protection Agency (« KIPPA ») may suggest appropriate corrective measures such as for instance removal and modification associated with the marking that is false. Furthermore, when there is failure to comply with the corrective measures, the KIPPA may register a unlawful issue in conformity utilizing the Criminal Procedure Act. Violators can be susceptible to imprisonment as much as 36 months or an excellent of as much as thirty million Won that is korean USD 27,000).
Third Party Challenges to Pending Patent Applications
Under Article 63-2 regarding the KPA, a 3rd party may submit information challenging pending applications even though it is being analyzed at KIPO. The distribution may include, as an example, previous art sources and/or a short on technical and legalities to aid the examiner’s understanding. Even though basic training is the fact that the patentee will not have the challengerвЂ™s distribution, the challenger continues to be needed to reveal their identification within the distribution. As a result, numerous challengers have already been utilizing a straw guy whenever publishing challenges to help keep their identities private.
The Amended Rules eliminates the need for challengers to reveal their identities. Hence, challengers no more need certainly to work with a straw man whenever patent that is challenging.