Revision of Patent Act - South Korea
The Revised Korean Patent Act which will come into force from July 1, 2007, addresses the following changes:
1. Introduction of grace period:- At present, a patent application must comprise a specification and claim when filed with the Korean Intellectual Property Office (KIPO). Under the revised Act, the applicant may submit patent claims as early as possible without committing to a particular set of claims for upto 18 months. The extra time allows the applicant to garner information necessary to draft optimum claims, considering various factors, such as patentability, enforceability and commercialization of the invention.
2. Reduction in descriptive requirement:- According to the current Act, the specification must describe the object, constitution and effect of an invention. However the revised Korean Patent Act now appears to allow some flexibility in the description requirements, if the applicant can properly specify the invention in view of its structures, applications or usefulness. Now the specification merely has to be described in a clear and detailed manner such that those skilled in the art can easily practise the invention.
3. Recitation of claims:- The current Act prescribes that the claims must recite only the elements indispensable for the constitution of the invention, failing which it may lead to the claims being rejected or invalidated. The revised Patent Act provides that the claims must recite structures, methods, functions, materials or combinations thereof that are considered necessary for identifying an invention. Only the essential elements of the invention must be specified in the claims. If the claimed invention is directed to a product, the invention should be specified by its physical structures in the claims.
4. Notice of rejection:- Under the current Patent Act, examiners may issue a Notice of Rejection for only some of the claims that are rejected. However, under the new developments, examiners must issue a rejection notice for all the claims that are rejected and should specify the rejected claims and provide the grounds for each rejected claim in the Notice.
5. Measures to amend the application for claim:- Under the current Act, there are only limited measures to amend the allowed the patent application, where the patentee is not allowed to file an independent correction action. Under the revised Act, a patentee may also file a new petition for correction when it becomes necessary to respond to the petitioner's new evidence. When the new petition is filed, the previous petition is deemed to be withdrawn.
6. Deadline abandoning:- The current Act only allows time adjustments in the form of extensions after the prescribed deadline for filing a response to an office action, thus shortening the deadline even if the applicants requests for extension for expedited examination. Under the revised Patent Act, the examiner can shorten the deadline if the applicant requests it and may allow a patent application even before the prescribed deadline for responding to the office action.
7. Refund of official fee:- Under the current Act, previously paid official fees are not refunded even after the withdrawal or abandonment of a patent application and the request for examination. The Revised Act allows a refund of official fees incurred in filing the application and request for examination, provided that the application is withdrawn or abandoned within one month from the filing date.
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