Article 4 & 8 of the Utility Model Act in Korean

Article 4 & 8 of the Utility Model Act in Korean

韓國新型審查之第4及8條文

Article 4 Requirements for Utility Model Registration

(1) A utility model may be granted for devices that are industrially applicable and relate to the shape or structure of an article or a combination of articles, unless they fall under either of the following subparagraphs:

(i) devices publicly known or worked in the Republic of Korea or a foreign country before the filing of the utility model application; or

(ii) devices described in a publication distributed in the Republic of Korea or in a foreign country before the filing of the utility model application or made available to the public through electronic telecommunication lines under Presidential Decree.

(2) Notwithstanding paragraph(1), where a device could easily have been made before the filing of the utility model application by a person with ordinary skill in the art to which the device pertains, on the basis of a device referred to in either subparagraph of paragraph (1), a utility model registration may not be granted to that device.

(3) Notwithstanding paragraph (1), where a device for which a utility model application is filed is identical to a device or an invention described in the description or drawing(s) originally attached to another utility model application or a patent application, and where the other utility model application was filed before the utility model application and published after registration for public inspection after the filing date of the utility model application, or where a patent application was filed before the utility model application and laid open or published after grant for public inspection after the filing date of the utility model application, a utility model may not be granted for the device of the utility model application. This provision does not apply, however, where the 6 inventor of the utility model application and the inventor of the other utility model or patent application are the same person or where the applicant of the utility model application and the applicant of the other utility model or patent application are the same person at the time of filing.

(4) In applying paragraph (3), where the other utility model or patent application falls under one of the following subparagraphs, “laid open” of paragraph 3 reads “laid open or was the subject of an international publication under Article 21 of the Patent Cooperation Treaty”, and "a device or invention described in the description or drawing(s) originally attached" reads, in case the application was filed in Korean, "a device or invention described in the description, claim(s) or drawing(s) of the international application as of the international filing date" and, in case the application was filed in a foreign language, “a device or an invention described in the description, claim(s) or drawing(s) described both in the international application as of the international filing date and its translated version”:

(i) the other utility model application is an international application (including an international application that is deemed a utility model application according to Article 40(4)) that is deemed a utility model application according to Article 34(1); and

(ii) the patent application is an international application that is deemed a patent application according to Article 199(1) of the Patent Act (including an international application that is deemed a patent application according to Article 214(4) of the Patent Act).

  

Article 8 Application for a Utility Model Registration

(1) A person seeking to register a utility model shall file a utility model application with the Commissioner of the Korean Intellectual Property Office, stating the following:

(i) the name and address of the applicant (and, if a legal entity, the name and address of the business);

(ii) the name and residential or business address of an agent, if any (and, if the agent is a patent legal entity, the name and address of the business and the name of the designated patent attorney);

(iii) the title of the device; and (iv) the name and address of the deviser;

(2) A utility model application under paragraph (1) must be accompanied by an abstract, drawing(s) and a description stating the following:

(i) the title of the device;

(ii) a brief explanation of the drawing(s);

(iii) a detailed description of the device; and (iv) the claim(s).

(3) In a method prescribed by ordinance of the Ministry of Commerce, Industry and Energy, the detailed description of a device under paragraph (2)(iii) of this Article must be clear and detailed enough to enable a person with ordinary skill in the art to which the device pertains to work the device easily.

(4) The claim(s) under paragraph (2)(iv) must describe the matter for which protection is sought 10 in one or more claims (referred to as "claim(s)"), and the claim(s) must comply with each of the following subparagraphs:

(i) the claim(s) must be supported by a detailed description of the device;

(ii) the claim(s) must define the device clearly and concisely 

(iii) deleted.

(5) Notwithstanding paragraph (2) of this Article, when a person files an application to register a utility model, the description that must be submitted with the application may exclude the scope of claims claim(s) referred to in paragraph (2)(iv). In this case, however, the person shall amend the description to include the scope of claim(s) not later than the relevant deadline stipulated in either of the following subparagraphs:

(i) the date on which a period of one year and six months elapses after the date that falls under any of the subparagraphs of Article 64(1) of the Patent Act, which applies mutatis mutandis under Article 15 of this Act; or

(ii) the date on which a period of three months elapses after the date on which a notice of the purport of a request to examine an application is given under Article 60(3) of the Patent Act, which applies mutatis mutandis under Article 15 of this Act, before the deadline stipulated in subparagraph (i) of this paragraph (provided the notice is given more than one year and three months after the date that falls under any of the subparagraphs of Article 64(1) of the Patent Act, which applies mutatis mutandis under Article 15 of this Act).

(6) In stating the scope of claims for utility model registration under paragraph (2)(iv) of this Article, the applicant shall specify the shape and structure or a combination of these for the purpose of clarifying which specific parts of the design are be protected.

(7) Where a person who has applied to register a utility model fails to amend the description that does not contain the scope of claim(s) by the relevant deadline stipulated in the subparagrpahs of paragraph (5) of this Article, the application for utility model registration is deemed to have been withdrawn on the date immediately following the relevant deadline.

(8) Necessary matters related to the method of stating the scope of claims for utility model registration under subparagraph (2)(iv) of this Article are prescribed by Presidential Decree.

(9) Necessary matters related to the method of preparing an abstract under paragraph(2) of this Article are prescribed by ordinance of the Ministry of Commerce, Industry and Energy.