SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
Lee & Ko 18th Floor 63 Namdaemun-ro Jung-gu Seoul 04532 Republic of Korea Tel: +82-2 772 4000
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1. Patents 1.1 Legal Framework and Patentable Subject Matter Sources of Law Matters concerning patents are governed, in princi- ple, by the Patent Act, a statutory law. The Patent Act sets out the basic requirements, including patent- ability criteria, examination procedures, and the rights of patentees, while judicial interpretations from the Supreme Court and the IP High Court supplement these provisions. The examination guidelines issued by the Ministry of Intellectual Property (MOIP) serve as important reference materials in the patent registration process, but the ultimate standards are established by the courts. Patentable Inventions The “invention” eligible for patent protection is defined as “a highly advanced creation of technical ideas that utilises the laws of nature”. Industrial applicability is also one of the fundamental patentability require- ments. Inventions contrary to public order and moral- ity are excluded from patent protection. Exclusions • Software: Patentability is exceptionally recognised only when information processing via software is concretely realised using hardware. • Business Models: Patentability is recognised only when the model is concretely realised using hard- ware. • Medical Methods: In principle, these are excluded from patent eligibility as they are considered to
lack industrial applicability. However, technologies that do not directly target the human body or are not combined with a practitioner’s medical acts, such as medical devices, pharmaceuticals, blood extraction, or cell culture performed ex vivo, may be recognised as patentable subject matter. • Artificial Intelligence: While there are no clear criteria yet for AI software, the general view is that the same standards as those for general software apply. The inventorship of AI itself is not recog- nised. Utility Models Korea maintains a separate utility model system under the Utility Model Act, in addition to the Patent Act. This system protects technical ideas that utilise the laws of nature, relating to the shape, structure, or combina- tion of an article. Unlike patents, utility models do not require a highly advanced level of creation. 1.2 Patent Granting Procedure Application and Examination The process begins when an applicant submits an application to MOIP, including the specification and claims. A request for examination must be filed within three years of the application date. Upon receiving this request, an examiner assesses the invention against patentability requirements, specifically novelty, inven- tive step, and industrial applicability, as well as the sufficiency of the written description and the support of the claims by the specification. Should the exam- iner identify grounds for rejection, the applicant is pro- vided an opportunity to submit a written argument or an amendment to the application. Once the patent
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