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.
