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System 》Patent Trial System |
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Significance of Patent Trial |
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'Patent Trial' refers to a procedure in which
the Industrial Property Tribunal makes an
administrative judgment for the settlement of an
applicant/agent's patent-related disputes or
his/her dissatisfaction with an examiner's
decision to reject his/her patent application,
etc. A Patent Trial functions as the
first-instance trial in the Three-Instance
Patent Litigation System.
Only after a trial decision is given from the
Industrial Property Tribunal is an
applicant/agent allowed to appeal to a higher
court, such as the Patent Court and the Supreme
Court. |
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Industrial
Property Tribunal
(Court of first instance) |
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Patent Court
(Crt. of second instance) |
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Supreme Court
(Crt. of third instance) |
(Structure of the
Patent-related Disputes Trial System)
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Types of Appeals and Trial Examinations |
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Ex Parte Cases |
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Trial Against Ruling of Refusal or
Revocation（Patent Law Article 132ter）
When a person has received an examiner's
decision of rejection or revocation, that person
may demand an appeal within 30 days from the
date of receipt of the certified copy of the
examiner's decision. A provision for exception
is established in cases where a person resides
in an area that is remote or difficult to
access. The President of the Industrial Property
Tribunal may extend the time limit to 2 months
for the benefit of a person in this situation.
※ Re-examination Prior to Trial (Patent Law
Article 173)
There is a system of re-examination by an
examiner before an appeal has been established.
It is conducted when an amendment of
specifications or drawings is submitted within
30 days after a request for trial against a
ruling of refusal under Article 132ter.
Trial Against Decision to Reject
Amendment(Patent Law Article 132quater)
When a person receives a decision of rejection
on the basis of his amendments, he may demand an
appeal within 30 days from the date of receipt
of the certified copy of the decision. |
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Inter Parte Cases |
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Invalidation Trial of Patent (Patent Law Article
133)
Due to a mistake of an examiner or appeal
examiners, some patents which should not have
been granted may exist. In such cases, an
interested party or an examiner may demand a
trial to invalidate the patent, and for a patent
containing two or more claims a demand for an
invalidation trial may be made for each claim.
The reasons for invalidation of the patent are
generally the same as reasons for the rejection
of a patent application.
A trial for invalidation of a patent may be
demanded even after the expiration of the patent
right. Where a trial decision invalidating a
patent has become final and conclusive, the
patent right shall be deemed never to have
existed; however, where a patent is invalidated
by any reason that has arisen after the grant of
a patent, the patent right is deemed not to have
existed from the time when such reason
originated.
Trial to Confirm the Scope of a Patent
Right(Patent Law Article 135)
A patentee or an interested person may demand a
trial to confirm the scope of a patent right.
When a trial is demanded to confirm the scope of
a patent right, the confirmation shall apply to
each claim if the patent contains two or more
claims.
Trial for Correction (Patent Law Article 136)
A patent holder may demand a trial for
corrections to specifications or drawing for
only the following reasons: |
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⒜ to narrow a claim |
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⒝
to correct a clerical error |
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to clarify an ambiguous description. |
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However, this provision shall not apply where an
opposition to the patent is pending.
This trial is intended to protect an invention
by providing the opportunity for a patentee to
make corrections on the condition that there are
not any unexpected losses or damages incurred
upon any third parties.
When a trial decision stating that the
specifications or drawings of a patented
invention are to be corrected become final and
conclusive, the patent application, the
laying-open of the decision and the registration
of the establishment of the patent right, shall
be deemed to have been made on the basis of such
corrected specifications or drawings.
Trial for Invalidation of Correction (Patent Law
Article 137)
An interested party or an examiner may demand a
trial for an invalidation of a correction, where
the specifications or drawings of a patented
invention have been corrected in violation of
Article 136.
When a decision that a correction of the
specifications or drawings is to be invalidated
becomes final and conclusive, the correction
shall be deemed never to have been made. |
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POSTAL ADDRESS
Seocho P.O.BOX 127 Seoul, 137-600 KOREA
www.wellpatent.com /
info@wellpatent.com |
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OFFICE ADDRESS
5F, Pungwon Building, 52-8, Nonhyeon-dong, Gangnam-gu, Seoul, 135-010, Korea
Tel.+82-2-588-0030 / Fax.+82-2-588-1030 |
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