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| 1. Procedures for Granting Utility Model |
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| 1. Procedures for Granting Utility Model |
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(1) overview
| The flowchart shows an outline of procedure under utility
model system of korea After a utility model application is filed
with KIPO, a utility model right is granted through various
steps
The korean utility model system is characterized by :
- First-to-File Rule :
- Examination on Basic Requirements for Quick Registration
- Request for Technical Evaluation
- Decision of Revocation or Maintenance through Technical
Evaluation
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(2)
Filing an Application
(ⅰ) Applicant
Either the deviser of an device or his or her assignee can file
a utility model application for the device with KIPO. The applicant
may be either a natural person or a juristic person.
(ⅱ) Documents Required
A person who desires to obtain a utility model must submit to
the commissioner of KIPO the following documents:
| a) |
an application stating the name and address of the deviser
and the applicant(including the name of a representative,
if the applicant is a juristic person), the date of submission,
the title of the device, and priority date(if the right
of priority is claimed): |
| b) |
a specification setting forth the following matters:
the title of the device: a brief description of drawings(if
any): a detailed description of the device: and claim(s): |
| c) |
drawing(s), if any: |
| d) |
an abstract: |
| e) |
if the right of priority is claimed, the priority document
which is a certified copy of the priority application
together with its Korean translation: and |
| f) |
a power of attorney, if necessary |
(ⅲ) Claim of priority
In order to enjoy the priority right, an application should
be filed with KIPO within 1 year from the earliest filing date
of the priority application. The priority document above mentioned
may be submitted within one year and four months from the priority
date. If the priority document is not submitted within that
period of time, the claim of priority will become null and void. |
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(3)
Formality Examination
When utility model application is submitted to KIPO, it is
checked that all requirements necessary to accord the application
a filing date have been satisfied, Under the Article 7(1) of
the Enforcement Regulation of Utility Model Law, in any of the
following instances the application will be returned to the
submitter without any application number being assigned there
to and will be treated as if it had never been submitted.
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Where the kind of the application is not clear; |
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Where the name or address of a person(or juristic person)
who is initiating the procedure is not described; |
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Where the application is not written in Korean; |
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Where the application is not accompanied by the specification/claims
or drawings |
| - |
Where the application is submitted, by a person who
has no address or place of business in the Republic of
Korea, without using an agent in the Republic of Korea |
Once the application has satisfied the requirements, KIPO assigns
an application number and examines as to whether or not other
formality requirements under Utility Model Law have been met,
if KIPO discovers that a document or information is missing,
such as a power of attorney or the name of the representative
of a juristic person, it will issue a notice of amendment requesting
the applicant to supplement the missing data, within the specified
time limit. The applicant may obtain an extension of the designated
time period.
If the applicant does not comply with such a request with in
the designated or any extended period, application will be nullified
and then considered as having never been filled |
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(4)
Basic Requirements Examination
Because there is no substantive examination concerning novelty,
inventive step and industrial applicability under the non-examination
system, there will be examination of the basic requirements
to avoid and eliminate minimum irrational elements in the application
before registration.
At the stage of examination of basic requirements the following
items are examined
① Where the device is related to the shape or structure of an
article or a combination of articles
② Unregistrable Devices
Devices which are identical or similar to the notional flay
or decorations
Devices liable to contravene public order or morality or to
injure the public health
③ Drafting of claims
④ Unity of utility model application
⑤ Whether the essential parts of the description or drawings
has been included in the application or whether the description
is evidently unclear
Basic Requirements Examination is done in each procedural step
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(5)
Registration
| The examiner shall request registration of the utility model
application promptly of no lacks concerning the basic requirements
can be found, but not before two month from the filing date.
The reason for that is the same as in the case for the invalidation
procedure. |
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(6)
Technical Evaluation
Technical evaluation is different from the substantive examination
in patent. Because the subject matter is already registered
in the system before technical evaluation, technical evaluation
can be requested for each claim while request of the substantive
examination should be requested for all claims.
Therefore the examiner shall only make registration maintenance
decision or registration revocation decision for those claims
which are requested.
If technical evaluation is requested not for all claims and
there are reasons of revocation for a part of claims, only those
claims are revoked. And for those claims where there is no reason
of revocation, registration maintenance decision is made by
the examiner. Each claim which is requested must technically
evaluated, in case of registration revocation decision the reasons
shall be written as for the case of ruling of refusal.
Technical evaluation can be requested by the applicant, owner,
exclusive licensee, non-exclusive licensee, interested party
and examiner of the KIPO.
Technical evaluation can be requested by the applicant, owner,
exclusive licensee, non-exclusive licensee, interested party
and examiner of the KIPO.
Technical evaluation can be requested at filing or at any time
after the filing date. Even if the term of utility model right
has expired, technical evaluation can be requested when a interest
of request exists.
- Requested for registration maintenance decision.
For a utility model to be received maintenance decision of registration.
It should not fall into any of the categories prescribed in
Article 25(1) of the utility model law
- Registration revocation decision
If the Examiner finds a ground for revocation of a registration
utility model, a notice of preliminary revocation shall be issued;
and the applicant will be given an opportunity to submit a response
to the preliminary revocation with a time limit designated by
the examiner, Such time limit is extendable upon the request
for an extension by the applicant.
In responding to the preliminary revocation the applicant may
file an argument with an correction to the specification and/or
claims. If the examiner determines that the argument is without
merit and the ground for revocation has not been overcome, he
or she will issue a notice of revocation of registration utility
model |
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(7)
A dual application
The applicant who has first filed a patent application has
the opportunity to file for the same technical feature an utility
model application and establish a right for it without abandoning
the patent application. On the other hand, the applicant who
has first filed utility model application and wishes to prolong
the term of duration of right has the opportunity to file a
patent application and at the same execute his right based on
the utility model.
The applicant must be the same as the applicant of the original
application. The decision whether the both applicants are identical
follows the usual procedure for similar cases.
Dual application can be filed at the following dates. First,
it can be filed at the filing date of the patent application.
Second, after filing the patent application and before the reception
of decision to grant a patent or within 30 days from the date
of reception of ruling of refusal. And finally, within 1 year
from the date of registration of the utility model application
dual application can be filed.
But if the original application is an international patent application,
the following special provisions will be applied to the application.
| ① |
Dual application is possible if fees prescribed in
article 82(1) of patent law is paid and the translation
prescribed in article 201(1) of patent law is submitted. |
| ② |
Dual application is possible after the decision that
the international patent application has turned to be
a patent application prescribed in article 214 of patent
law . |
- Non-admittance of Double patenting
It shall be noted that double patenting of patent and utility
model is not allowed under the dual application system. Therefore
when the utility model is firstly registered(after about 3 months)
and then the patent is granted, the applicant must abandon the
utility model in order to register the patent or abandon the
patent and maintain the registered utility model.
Double patenting is a reason for opposition procedure or trial
of invalidation but not for registration cancellation decision
by technical evaluation. This is because the reason for registration
cancellation decision by technical evaluation is restricted
to the reasons for registration requirement at filing(with the
exception of matters concerning right capacity). |
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