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Patents & Utility Models

• What's the difference between a patent and a utility model?

  A utility model is similar to a patent insofar as it protects the creation of a technical idea and is governed by most of the same regulations that apply to patents.
  Utility model rights, however, are intended for inventions that fall short of the required level of patentability.
  Patent rights cover products and methods while utility model rights are limited to only products.
  A patent is effective from the moment of registration and lasts 20 years from the application date.
  However, a utility model only lasts 10 years from the application date.
  
  The application and examination procedures of a utility model differ from those of a patent in the following ways:
  o Since a utility models are registered without being examined by an examiner, you will need to obtain a technical evaluation of the invention before you submit an application for the utility model right.
  o The validity of a utility model right is based on the technical evaluation.
  o When filing a utility model application, you should submit drawings that depict the content of the application.
  o The examination request period is three years (from the application date) for a utility model but five years for a patent.

• Can a medical procedure be patented in Korea?

  No. One of the requirements of patentability is industrial applicability. Medical procedures cannot be patented in Korea because they are deemed to lack industrial applicability. Only medical instruments and supplies pertaining to surgeries, treatments, and diagnoses are patentable.

• What documents should I submit when applying for a microbiological patent?

  When applying for a microbiological patent, you should deposit the relevant microorganisms at an authorized depository. This requirement does not apply if the microorganisms are easy to obtain.
  The authorized depositories include those listed in Article 7 of the Budapest Treaty and those designated by the commissioner of KIPO which include: the Korean Collection for Type Culture, the Korean Culture Center of Microorganisms, and the Korean Cell Line Research Foundation.
  
  Aside from the usual documents required for a regular patent application, you should include a document from the depository containing the name of the depository, the case number assigned by the depository, and the date of the deposition. If the microorganism is not deposited at an authorized depository for the above-mentioned reason, you are required to submit a written description of the method of obtaining the microorganism.

• Can a computer program be registered as a patent?

  No. In Korea, computer programs are not protected under the Patent Act. Instead, they are protected under the Copyright Act and the Protection Act of Computer Program by the Korea Software Copyright Committee (SOCOP), an affiliated organization of the Ministry of Culture, Sports and Tourism.
  For further information, please contact SOCOP:
  Web site: http://www.socop.or.kr/english/sub4/sub4_02_2.jsp
  E-mail: callie@socop.or.kr
  Tel: +82 (2) 2040-3663

• Is my invention still patentable if it gets some media coverage before I file the patent application?

  Yes, under certain circumstances. Normally an invention cannot be patented if it is publicly known before a patent application has been filed as it is deemed to lack novelty.
  However, Article 30 of the Patent Act allows the publishing of the details of the invention on the Internet, in newspapers, and so on in the six months prior to filing the application without jeopardizing the novelty of the patent. In such cases, your application should include a written statement (explaining the purpose of publishing the invention) and, within 30 days of the application date, you should submit a document that confirms the relevant facts of the publicity.

• Can I convert my utility model to a patent?

  Yes, under certain circumstances. Under Article 53(1) of the Patent Act,
  a person who applies for a utility model registration may convert the utility model application to a patent application within the scope of matters stated in the description or drawing(s) originally attached to the utility model application. However, the person may not convert the application if thirty days have elapsed since the date on which the person received a certified copy of the initial decision to refuse registration.

• Can I patent my invention if someone else has already applied for a utility model on an identical invention?

  No. In Korea, patent and utility model rights are granted on a first come, first served basis known as the first-to-file rule. This means you cannot patent your invention if someone has already filed a patent or utility model application for the same invention on an earlier date.
  
  If you (the patent applicant) and the other person (the utility model applicant) submit your applications for the same invention on the same date, you need to consult with the other person to reach an agreement or both applications will be jeopardized.
  
  According to Article 36 of the Patent Act,
  where a patent application has the same subject matter as a utility model application and the applications are filed on the same date, only the person agreed upon by all the applicants after consultation may obtain a patent for the invention. If no agreement is reached or no consultation is possible, none of the applicants may obtain a patent for the invention.

• What is an accelerated examination for patents and utility models and who can file a request for accelerated examination?

  An accelerated examination of a patent or utility model refers to an examination conducted in priority to other patent applications regardless of the order of examination requests according to Article 61 of the Patent Act. Anyone who has filed a patent or utility model application may file a request for an accelerated examination to the Commissioner of KIPO. However, for a patent application relating to the work of a national or local government, only the state or the local government (including the organization dedicated to technology transfer and commercialization established in national and public schools) can file a request for accelerated examination of the application.

• Can I, as a foreigner, file a request for an accelerated examination?

  The criteria to determine the eligibility of accelerated examination is the same for both applications filed by Koreans and foreigners. Thus, the request for accelerated examination by foreigners is acknowledged as long as the application is meets the requirements for eligibility.

• A patent application may be eligible for accelerated examination by agreement between the Commissioner of KIPO and the Head of a foreign patent office. Does this also apply to utility model applications?

  Accelerated examination by agreement between the Commissioner of KIPO and the Head of a foreign patent office applies only to patent applications and does not apply to utility model applications.

• Can I withdraw a request for accelerated examination?

  It is possible to withdraw a request for accelerated examination as long as a notice on the eligibility of accelerated examination has not been issued by an examiner. This is because the request for accelerated examination becomes effective once a notice is issued and the examiner considers the request of accelerated examination to be valid in order to commence the examination process.

• Even when I submit a request for accelerated examination after examination has already commenced, can a decision be made for accelerated examination?

  As long as the final rejection or a decision of grant for the application has not been made, it is possible to make a decision for a request for accelerated examination (which has been submitted after an examination has commenced) along with a decision on the acceptance of formality examination.

• Last updated 13 August 2020
• International Cooperation Division
  (Patent Legal Administration Division)