• In South Korea, patents are available for devices, methods, processes, and material inventions.
• Software patents have specific considerations:
  • Patents may be granted if the software is stored in a physical medium (e.g., CD-ROM) and interacts with hardware.
  • The patent covers the method of hardware operation and the physical medium storing the program.
• Downloadable apps generally do not qualify for patents on their own.
• Copyright protection under Korea’s Copyright Act is an alternative for safeguarding software creations.

Yes, an applicant can file an application in a foreign language in Japan. However, if the original application documents are not in Japanese, a Japanese translation must be filed within a specified period after the filing date. The Japan Patent Office typically requires the translation to be submitted within 14 months from the priority date. This translation requirement ensures that the JPO can effectively examine the application.

1. Industrial Applicability: This requirement ensures that a patent must have practical use in industry. In other words, the invention should be capable of being made or used in some kind of industry or economic activity. This criterion aims to prevent the patenting of abstract or purely theoretical concepts that lack practical utility.
2. Novelty: Novelty means that the invention must be new and not publicly disclosed before the filing date of the patent application. Prior art refers to any information that has been made available to the public before the priority date (filing date) of the patent application. This includes prior patents, published patent applications, scientific publications, public demonstrations, or any other form of public disclosure.
3. Inventive Step: Also known as non-obviousness, this requirement ensures that the invention involves an inventive step that is not obvious to a person skilled in the relevant field of technology. Even if an invention is new, it may still be obvious if the difference between the invention and the prior art would have been obvious to someone with ordinary skill in the field at the time of the invention. The inventive step criterion aims to reward inventions that represent significant advancements or improvements over existing technology.

In South Korea, certain inventions are deemed unpatentable due to their potential impact on public order, morality, or public health, as well as their departure from the laws of nature. These exclusions include inventions that could contravene societal or national interests, as well as those that diverge from widely accepted moral standards. Additionally, inventions posing risks to public hygiene are ineligible for patent protection. Specifically outlined in the Korean Patent Act and KIPO’s Requirements for Patentability are various categories of inventions that are not eligible for patents, such as scientific discoveries, arbitrary arrangements, mental activities, aesthetic effects, animal and plant varieties, and methods for medical treatment of the human body.

A utility model is akin to a patent in safeguarding technical ideas but is designated for inventions that don’t meet full patentability standards. While patents cover both products and methods, utility model rights are restricted to products alone. Furthermore, while a patent lasts for 20 years from registration, a utility model lasts only 10 years from the application date. The application process for a utility model entails obtaining a technical evaluation before submission, and the validity of the utility model right hinges on this evaluation. Drawings illustrating the application’s content are necessary for a utility model application. Additionally, the examination request period is three years from the application date for a utility model, contrasting with five years for a patent.

After filing the application, KIPO examines the invention for patentability, including reviewing prior art and assessing inventive step. If approved, the application is published, and examination occurs only upon request within 3 years. During a two-month period post-publication, opposition based on novelty, inventive step, or patentability may be filed. If contested, KIPO notifies the patent holder for response, potentially leading to further examination. If no opposition or if unsuccessful, KIPO grants the patent. The applicant must pay the first 3 years’ annuities within 3 months of the decision. Upon granting, exclusive rights are conferred for 20 years from filing. The process typically takes 2-3 years.

Patents in South Korea are valid for 20 years from the filing date. Maintenance fees for the first three years, including the grant fee, must be paid within three months of receiving the Notice of Allowance. Subsequent annual fees are due before each anniversary of the registration date. Annuities for the initial 3 years are counted from the registration date, as no maintenance fees accrue during pendency. Late payment is feasible within 6 months after the initial payment period, subject to a surcharge. The annual maintenance fee varies based on the number of claims, and cumulative payment is possible.

The cost of obtaining a patent in South Korea can vary depending on several factors, including the complexity of the invention, the services of a patent attorney, translation fees, and any additional charges related to the application process. Generally, the total cost may include fees for drafting and filing the application, examination fees, and annuity fees for maintaining the patent’s validity over its 20-year term. Additionally, there may be costs associated with responding to office actions or opposition proceedings if they arise during the application process.

Applicant may file a trademark application for:

Trademark: A distinctive emblem employed by individuals or corporations engaged in the production, processing, certification, or sale of goods to differentiate their products from those of others. Both individuals (natural persons) and corporations are eligible applicants.

Service Mark: An identifying symbol utilized by individuals or corporations engaged in non-profit endeavors to distinguish their work from that of others. Individuals (natural persons) and corporations involved in non-profit work in South Korea are eligible applicants.

Collective Mark: A designated emblem used by a corporation jointly involved in producing, selling, manufacturing, or processing goods, or by a group of individuals engaged in service businesses, to enable its members to utilize it for their business activities related to goods or services. Corporations are eligible applicants.

Certification Mark: A recognized symbol employed by the proprietor of a certification mark or an authorized user to validate various attributes of goods or services, including origin, raw materials, manufacturing method, supply method, quantity, precision, and other characteristics. Both individuals (natural persons) and corporations are eligible applicants.

Geographical Indication: A symbol signifying that a product originates from a specific region, where its quality or reputation is primarily derived from natural conditions such as climate, soil, terrain, and human factors such as traditional production methods. Corporations are eligible applicants for collective geographical indication mark and both individuals (natural persons) and corporations are eligible applicants for certification geographical indication mark.

The most common reasons for rejection by KIPO examiners concerning trademark applications are as follows:

1. Lack of distinctiveness: If the proposed trademark name is excessively common for the relevant goods or services, or if it directly describes attributes like material, quality, nature, efficacy, purpose, or quantity, or if it incorporates someone else’s name, a common surname, or a well-known place name, it may lack the necessary distinctiveness for registration.
2. Similarity to prior trademarks: If the applied trademark closely resembles another person’s earlier application or registration, filed or registered before the filing date of the current trademark, for the same or similar goods or services, it might be refused registration. Exceptions apply if the designated goods or services are entirely different.
3. Inconsistent goods or services classification: If the classification of goods or services in the applied trademark differs from the designated goods or services, it could result in rejection of the trademark application.

• Formal Examination: The Korean Intellectual Property Office (KIPO) checks the application for basic requirements like proper documents, fee payment, and formalities compliance. If deficiencies are found, the applicant can rectify them within a specified period.
• Substantive Examination: Once formal requirements are met, the application undergoes substantive review. The examiner assesses registrability based on factors like distinctiveness, similarity to prior marks, and legal compliance.
• Examination Report: If issues arise during substantive examination, an examination report is issued, outlining grounds for refusal or deficiencies. The applicant usually has around 30 days to respond.
• Response to Examination Report: The applicant can submit a response addressing objections or deficiencies, often by providing arguments, evidence, or amendments to overcome them.
• Final Decision: After reviewing the response, the examiner issues a final decision. This may include approval for registration, conditional approval with requirements or amendments, or outright refusal. If refused, the applicant may appeal within a specified period.

Upon filing the trademark application, corrections to the application in South Korea are permitted within the timeframe specified in Article 41 of the Trademark Act. The specific periods for making corrections are as follows:

1. Period for Submitting an Opinion Statement: Upon receiving a rejection notice from the Korean Intellectual Property Office (KIPO), the applicant has a designated period to submit an opinion statement addressing the grounds for rejection. During this period, proposed corrections to the application are allowable.
2. Period for Submitting a Response Statement: If the applicant files an application for trademark registration review following the rejection notice, they have a specific period to submit a response statement addressing the grounds for rejection. Within this timeframe, corrections to the application can be proposed.
3. Period for Requesting a Trial: If the applicant decides to file a request for a trial against the rejection decision, they have 30 days from the date of filing the request to make corrections to the application.

It’s essential to ensure that any corrections made during these periods do not alter the fundamental nature of the trademark application but rather focus on rectifying errors or clarifying information. Seeking guidance from a trademark attorney or legal expert is advisable to navigate the correction process effectively and comply with the requirements set by the Korean Intellectual Property Office.

In the event of suspected trademark infringement, action must be taken promptly. Here’s a breakdown of the process:

1. Evidence Collection: Conduct a thorough investigation into the unauthorized use of the trademark by the infringing party.
2. Analysis: Analyze the collected evidence against the trademark rights to determine if infringement has occurred.
3. Warning Letter: If infringement is clear, consider sending a warning letter to the infringer demanding cessation of infringement and providing evidence.
4. Legal Proceedings: Depending on the response to the warning letter, legal action may be pursued. This can involve reporting the infringement to law enforcement, applying for an injunction to halt infringement, or filing a lawsuit for infringement.

After a trademark application is published in the official “Trademark Publication Gazette,” it becomes open to the public. During this phase, any individual who believes they may be negatively affected by the trademark’s registration can file an opposition, which lasts for a fixed two-month period and cannot be extended.

Within the initial thirty days of the opposition window, the opponent must submit a notice of opposition, providing a brief statement outlining the grounds for opposition. This statement summarizes why the opponent opposes the trademark registration.

Following the notice of opposition, the opponent has an additional thirty days to adjust, expand, or supplement the grounds for opposition, allowing them to provide further details or bolster their case against the trademark registration.

Strict adherence to deadlines throughout the opposition process is crucial. Failure to submit the notice of opposition within the specified timeframe or to amend the grounds within the subsequent thirty days may lead to rejection or incomplete consideration of the opposition.

The opposition mechanism enables third parties to voice objections and present arguments against a trademark’s registration, facilitating a thorough assessment of its eligibility and potential conflicts with existing trademarks or legal considerations.

Both the applicant and the opponent should meticulously navigate the opposition process, ensuring adherence to prescribed timelines and effective presentation of arguments. Seeking guidance from legal professionals or trademark experts can help understand requirements and enhance the likelihood of success in opposition proceedings.

When a trademark is registered in Korea, it initially holds a validity period of 10 years from the date of registration. Throughout this period, the trademark owner possesses exclusive rights to use the trademark and can take legal action against any unauthorized use or infringement.

Renewal Process: To prolong the validity of a registered Korean trademark beyond the initial 10-year term, the trademark owner must submit application for the renewal application to the Korean Intellectual Property Office (KIPO). This application should be filed before the expiration of the current 10-year term.

Renewal Period: The renewal period for a Korean trademark commences six months before the expiration date of the registration and extends for six months after the expiration date. Within this one-year renewal period, the trademark owner is eligible to file the renewal application.

The cost of trademark registration in South Korea can vary depending on several factors, including the type of trademark, the number of classes it falls under, and whether you engage a trademark attorney or agent to assist with the process. Generally, the total cost includes filing fees, attorney or agent fees (if applicable), and any additional charges related to examination or publication.