Comprehensive Guide to Filing a Patent Application in South Korea
When it comes to patent applications, South Korea stands out as a thriving market, witnessing a continuous increase in the number of patents granted by the Korean Industrial Property Office (KIPO).
Like any other country, South Korea has its own set of intellectual property standards and prerequisites. To ensure the utmost protection for your intellectual property in South Korea, here is essential information you should be aware of.
Key Factors for Patentability in South Korea
In South Korea, patents can be obtained for various types of inventions such as devices, methods, processes, and materials. However, the patentability of software is a bit more nuanced. If a program is stored in a tangible medium and interacts with hardware, a patent may be granted for the method of hardware operation and the physical medium that stores the program. On the other hand, a downloadable app alone would not typically qualify for a patent. It's worth noting that software can still be protected under Korea's Copyright Act, which provides copyright safeguards.
The Korean Industrial Property Office (KIPO) exercises caution and rejects patent applications that cover natural laws, natural phenomena, or inventions contradicting such laws. Additionally, patents are not granted for personal skills that can be acquired through practice, new presentations of existing information, purely aesthetic creations, or inventions that conflict with public order, morality, or public health.
Different Ways to File a Patent in South Korea
South Korea has been a member of the Patent Cooperation Treaty (PCT) since 1984, providing a convenient filing option. Under the PCT, you can submit an initial priority application in one country and subsequently file a national-phase application in any of the other 153 PCT member states. To meet the deadline, you must file within 30 or 31 months from the date of your priority application. In South Korea, the national-phase entry deadline is set at 31 months. Opting for the PCT route is advantageous when seeking protection across multiple countries.
For those targeting only one or two countries, it is possible to file separate applications in each jurisdiction under the Paris Convention. However, it's crucial to keep in mind that this method requires filing in South Korea within 12 months from your priority application, unlike the extended 31-month timeframe offered by the PCT filing method.
Regardless of the chosen filing approach, engaging local representation is essential for filing in South Korea. You will need to hire a registered South Korean patent attorney. Having a local representative offers the benefit of facilitating efficient communication with the Korean Industrial Property Office (KIPO), as timely responses within the two-month limit for official actions or requests are vital.
Note:
In South Korea, it is required for the applicant to submit a separate examination request in addition to the patent application, and this request must be submitted in the Korean language. The official examination by the Korean Intellectual Property Office (KIPO) will not commence until the examination request is received.
Language Requirements for Filing Patents in South Korea
Whether you choose to file a Korean patent application through the PCT framework or the Paris Convention, it is permissible to submit your initial application in English. However, it is important to note that you will be required to provide a Korean translation of your application within specific timeframes based on the priority date:
- For PCT applications, a Korean translation must be submitted within 31 months from the earliest priority date. (Please note that a one-month extension may be requested if needed.)
- If you opt for the Paris Convention route, a Korean translation must be submitted within 14 months from your priority filing, without any exceptions.
To ensure compliance with the language requirements, it is advisable to engage a patent translation service for the accurate translation of your application into Korean within the specified time limits.
How Long Does It Take?
The process of obtaining a granted patent in South Korea is a lengthy one, typically taking around one and a half to two years after filing an examination request. The majority of this time is dedicated to the thorough review of the application's claims by the Korean Intellectual Property Office (KIPO), which conducts both formal and substantive examinations. Once granted, a South Korean patent remains valid for 20 years from the filing date of the application.
It is important to understand that in Korea, the applicant must separately file an examination request, which must be submitted in Korean. KIPO initiates the official examination process only upon receiving this request. As of March 1, 2017, applicants have a three-year window from the date of filing their patent application in Korea to submit the examination request to KIPO.
Alternatively, utility models, often referred to as "small patents," are also available in South Korea. These utility models have a shorter protection period of 10 years and are commonly used for less fundamentally inventive claims. Despite the shorter duration, utility models enjoy similar treatment as patents in terms of exercising intellectual property rights, and they can sometimes exhibit higher resistance to invalidation attempts compared to patents. It's important to note that utility models do not cover process inventions and substance inventions. Such types of inventions can only be protected with patents.
How much should I pay for patent in Korea?
The fee for a patent in Korea depends on its complexity, the number of KIPO office actions required, and whether there is any dispute involved. In all cases, a yearly fee should be expected.
The initial payment for the first three years is due upon granting of the patent, followed by yearly payments after that. In total, fees can range from the Korean won equivalent of a few thousand U.S. dollars to several thousand U.S. dollars.
Benefits of Filing a Patent in South Korea: Advantages and Opportunities
South Korea holds a prominent position as one of the world's major economies and a hub for technology and innovation. As a result, international patent filings in this crucial jurisdiction are expected to continue rising. While the process of filing and maintaining a patent in South Korea may involve certain costs, the return on investment is significant. Furthermore, South Korea is recognized as one of the top 10 easiest jurisdictions for conducting business. Considering these factors, it is highly recommended to include South Korea in any comprehensive global patent filing strategy, whether through the PCT or Paris Convention route.
Moreover, if you are contemplating a PCT international application, choosing to file your PCT application in South Korea through the Korean Intellectual Property Office (KIPO) brings several advantages in terms of cost and the overall system. Taking advantage of these benefits can greatly facilitate the progression of your overseas patent applications.
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