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A series on the characteristics of South Korea Design Patent System
06.21.2020

A series on the characteristics of South Korea Design Patent System
Introduction to Korea Examination System
Design patent law of South Korea was legislated independently and was first enacted in 1961. During the past 50 years, the law was amended on several occasions in order to adapt to the rapid development of the country’s design industry and meet the diverse needs of applicants. It gradually formed its own characteristics.
South Korea adopts one of the two modes of examination – substantive examination and non-examination – in accordance with the type of design patent application, and the patent rights of the two are the same.

As to substantive examination, after filing of an application for a design patent, an examination on formality is first carried out. After satisfying the formality examination, the application can be disclosed upon request of the applicant. For applications that meet the requirements for substantive examination authorization, the examiner makes a registration decision, followed by an announcement of the registration. If an application is found not to meet the requirements for substantive examination authorization, the applicant shall be notified of the reason for refusal to grant authorization, and the authority shall according to the circumstances decide whether to allow or reject the application after the applicant amends his application. If the applicant disagrees with the decision of refusal, he can appeal to the Intellectual Property Court, Patent Court and Supreme Court.
The examination procedure of non-examination is materially different from that of the substantive examination. After the application for non-examination is filed, the design patent application only undergoes examinations on formality and whether it disturbs public order or morality, and no substantive examination is conducted. Besides, an independent announcement system is established especially for the non-examination system, such that the announcement and data of the authorized patents and the patents undergone substantive examination are published separately.
Since the non-examination system only examines some of the substantive authorization conditions, South Korea added an “objection procedure” to the non-examination system, which means patents authorized under the non-examination system automatically become the object of opposition, and anyone can file an opposition application against its patent right within 3 months from the date of registration announcement.
The examination cycle of non-examination system is normally 2 to 3 months, so that the time needed for obtaining patent rights is shorter. However, the scope of application under this system is limited. After South Korea joined the Hague Agreement, the application scope of the non-examination system is limited to the three major categories of goods in the Locarno classification table, namely, Category 02 clothing, apparel and textile supplies, Category 05 textiles, artificial or natural material sheets, and Category 19 stationery, office supplies, art supplies and teaching supplies.
When Chinese innovative subjects submit design patent applications in South Korea, they can evaluate the pros and cons of substantive examination and non-examination, and choose one of the two according to their needs. The bodies can then fully utilize the advantages of the South Korea patent system.

Benny Kong & Tsai © 2020
 

Benny Kong & Tsai, Solicitors

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