Notable Changes towards the Enforcement Rules associated with the Korean Patent Act

KIPO (the Korean Intellectual Property workplace) has promulgated some brand new Enforcement guidelines through the Korean Patent Act („KPA“), effective March 30, 2020. The new Enforcement guidelines earn some modifications to Korean patent practice such as for instance leisure of formality needs for Korean patent actions, patent markings, and alternative 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 Have Priority Date

Presently, you can register a patent application in Korea with only the specification and with no claims. Article 42-2 KPA. The applicant will then have fourteen months from filing the initial transgenderdate jak dziaЕ‚a application to prepare the claims. Nonetheless, so that you can register without having the claims, the specification needed seriously to satisfy all the other formality demands e.g., consist of title of innovation, up to date, brief description of drawings, step-by-step explanation of this embodiments, etc. properly, although a patent application might be filed without claims (much like US provisional applications), certain requirements concerning the specification remained burdensome.

The amended Enforcement Rules associated with Korean Patent Act („Amended Rules“) decreases the formality demands when it comes to specification. The specification may be substituted with any publication that merely identifies the applicant’s invention under the Amended rules. As an example, an article that is academic a research note could be adequate. In addition, the present KPA permits the initial specification to be filed in English. This means an english article that is academic research paper don’t need to be translated into Korean during the time of filing. Therefore, a concern date can be had with much less costs.

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 priority date that is earliest. Failure to do this can lead to the patent application being thought to have already been withdrawn.

Patent Marking Needs

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 determined from date of real or constructive knowledge). Being a practical matter, in Korea, patent marking is employed mainly for advertising and marketing purposes, that might be used in the patentee’s choice (rather than an official appropriate advantage).

Article 223 regarding the KPA provides some needs or guidelines regarding just how to mark an item using the patent number ( e.g., by indicating „Patent“ or „Method Patent“ together utilizing the patent number(s) or by indicating „Patent Application (under assessment)“ or “ Method Patent Application (under assessment)“ alongside the patent application number(s)). Additionally, Article 121 associated with Enforcement Rules for the KPA permits marking that is virtual i.e., marking of an item with a hyperlink to a webpage showing the menu of relevant patents and patent applications.

Now, Article 121 of Amended Rules provides more guidelines that are specific. As an example, Article 121 of this 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 regarding the Amended Rule stipulates just how to mark the termination regarding the patent right and sets forth sanctions for false marking (patent marking/indications which could mislead customers into convinced that a write-up is included in a patent if you have no given patent/pending application). Especially, 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 regarding the false marking. Furthermore, if you have failure to comply with the corrective measures, the KIPPA may register a complaint that is criminal conformity with all the Criminal Procedure Act. Violators could be susceptible to imprisonment as much as 3 years or a superb of as much as thirty million Korean Won (about USD 27,000).

Third Party Challenges to Pending Patent Applications

Under Article 63-2 of this KPA, an authorized 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. The challenger is still required to disclose their identity in the submission even though general practice is that the patentee doesn’t have the challenger’s distribution. As a result, numerous challengers have used a straw guy whenever publishing challenges to help keep their identities private.

The Rules that is amended eliminates need for challengers to reveal their identities. Hence, challengers not any longer need certainly to make use of straw man whenever patent that is challenging.