KIPO (the Korean Intellectual Property workplace) has promulgated some brand new Enforcement Rules through the Korean Patent Act (“KPA”), effective March 30, 2020. The brand new Enforcement guidelines earn some changes 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 notable modifications are discussed below:
Formality Needs Relaxed For Korean Patent Applications – Making It Easier To Have Priority Date
Presently, you can 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. Nevertheless, to be able to register with no claims, the specification needed seriously to satisfy all the other formality needs e.g., consist of name of invention, up to date, brief description of drawings, detail by detail description for the embodiments, etc. Accordingly, although a patent application could possibly be filed without claims (just like US provisional applications), what’s needed concerning the specification remained burdensome.
The amended Enforcement Rules for the Korean Patent Act (“Amended Rules”) decreases the formality needs for the specification. Underneath the Amended Rules, the specification can be replaced with any publication that simply identifies the applicantвЂ™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 during the time of filing. Therefore, a concern date can be acquired with notably less expenses.
But, a job candidate who obtains a concern date without filing any claims or employing a language specification must file the claims https://www.hookupdate.net/pl/rozwiedziony-randki/ and/or the Korean translation within fourteen months of this 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 Failure to do this can lead to the patent application being thought to have already been withdrawn.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). As being a practical matter, in Korea, patent marking can be used primarily for advertising and marketing purposes, which might be used during the patentee’s choice (instead of an official appropriate advantage).
Article 223 of this KPA provides some demands or guidelines regarding how exactly to mark an item because of the patent quantity ( e.g., by indicating “Patent” or “Method Patent” together aided by the patent number(s) or by indicating “Patent Application (under assessment)” or ” Method application that is patentunder examination)” alongside the patent application number(s)). Additionally, Article 121 for the Enforcement Rules associated with the KPA permits virtual marking, i.e., marking of an item with a hyperlink to a web page showing record of applicable 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” found in patent markings can be labeled in English (including abbreviation that is english or Chinese. Furthermore, a club code or code that is QR be utilized as a way for digital marking. Further, Article 121 of this Amended Rule stipulates how to mark the termination for the patent right and sets forth sanctions for false marking (patent marking/indications that will mislead customers into convinced that articles is included in a patent if you find no given patent/pending application). Especially, the Amended Rule stipulates that when the marking/indications are thought as false marking, the Korea Intellectual Property Protection Agency (“KIPPA”) may suggest appropriate corrective measures such as for instance removal and modification for the marking that is false. Furthermore, when there is failure to conform to the corrective measures, the KIPPA may register a complaint that is criminal conformity with all the Criminal Procedure Act. Violators might 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 regarding the KPA, a 3rd party may submit information challenging pending applications even though it is being examined at KIPO. The distribution may include, as an example, previous art recommendations and/or a short on technical and legal issues to aid the examiner’s understanding. Even though the basic training is the fact that the patentee will not get the challengerвЂ™s distribution, the challenger continues to be necessary to reveal their identification when you look at the submission. As a result, numerous challengers have used a straw guy when publishing challenges to help keep their identities private.
The Rules that is amended eliminates need for challengers to reveal their identities. Therefore, challengers no more need certainly to make use of a straw man whenever patent that is challenging.