KIPO (the Korean Intellectual Property workplace) has promulgated some enforcement that is new through the Korean Patent Act (“KPA”), effective March 30, 2020. The brand new Enforcement guidelines 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 notable modifications are talked about below:
Formality Demands Relaxed For Korean Patent Applications – Making It Simpler To Acquire Priority Date
Currently, you are able to register a patent application in Korea with just the specification and with no claims. Article 42-2 KPA. The applicant will then have fourteen months from filing the application that is original prepare the claims. Nonetheless, so that you can register minus the claims, the specification had a need to satisfy all the formality demands e.g., include name of innovation, up to date, brief description of drawings, detail by detail description for the embodiments, etc. appropriately, although a patent application could possibly be filed without claims (just like US provisional applications), certain requirements about the specification remained burdensome.
The amended Enforcement Rules regarding the Korean Patent Act (“Amended Rules”) decreases the formality demands for the specification. Underneath the Amended Rules, the specification could be replaced with any publication that simply identifies the applicant’s innovation. As an example, an article that is academic a research note could be enough. In addition, the existing KPA permits the specification that is initial be filed in English. This means an english article that is academic research paper don’t need to be translated into Korean at the time of filing. Hence, a concern date can be had with even less expenses.
Nevertheless, a job candidate who obtains a concern date without filing any claims or utilizing a spanish specification must register the claims and/or the Korean translation within fourteen months for the earliest concern date. Failure to take action can lead to the patent application being thought to have already been withdrawn.
Patent Marking Needs
In Korea, patent marking is not needed to get damages. The patentee can look for damages through the patent grant date (compared to the United States where damages are determined from date of real or constructive knowledge). Being a practical matter, in Korea, patent marking is employed primarily for advertising and marketing purposes, which might be used during the patentee’s option (in the place of a formal appropriate advantage).
Article 223 of the KPA provides some demands or rules regarding just how to mark something with all the patent quantity ( e.g., by indicating “Patent” or “Method Patent” together aided by the patent number(s) or by indicating “Patent Application (under examination)” or ” Method Patent Application (under examination)” alongside the patent application number(s)). Additionally, Article 121 associated with the Enforcement Rules associated with the KPA enables marking that is virtual i.e., marking of an item with a web link to a web site showing the menu of relevant patents and patent applications.
Now, Article 121 of Amended Rules provides more particular tips. For instance, Article 121 for the Amended Rules stipulates that “Patent” or “Method Patent” found in patent markings could be labeled in English (including abbreviation that is english or Chinese. More over, a club code or code that is QR be applied as a method for digital marking. Further, Article 121 associated with the Amended Rule stipulates exactly how to mark the termination of this 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 find no issued patent/pending application). Especially, the Amended Rule stipulates that when www.hookupdate.net/bronymate-review the marking/indications are thought as false marking, the Korea Intellectual Property Protection Agency (“KIPPA”) may recommend appropriate corrective measures such as for instance removal and modification regarding the false marking. Furthermore, when there is failure to comply with the corrective measures, the KIPPA may register a complaint that is criminal conformity utilizing the Criminal Procedure Act. Violators can 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
A third party may submit information challenging pending applications while it is being examined at KIPO under Article 63-2 of the KPA. The distribution may consist of, for instance, previous art references and/or a short on technical and legalities to help the examiner’s understanding. Even though basic training is the fact that patentee doesn’t have the challenger’s submission, the challenger continues to be needed to reveal their identity into the distribution. As a result, numerous challengers have used a straw man whenever publishing challenges to help keep their identities private.
The Rules that is amended eliminates requirement of challengers to reveal their identities. Therefore, challengers not need certainly to make use of straw man whenever patent that is challenging.