CHAPTER IV
ANNOUNCEMENT AND SUBSTANTIVE EXAMINATION
Part One
Announcement of Patent Applications
Article 42
(1) The Directorate General shall announce an Application that has fulfilled the requirements of Article 24.
(2) The announcement shall be carried out
a. in the case of a Patent, 18 (eighteen) months after the Filing Date of the Application, or 18 (eighteen) months after the priority date if the Application is filed with a Priority Right; or
b. in the case of a Simple Patent, at the latest 3 (three) months after the Filing Date.
(3) The announcement as referred to in paragraph (2) item a may be conducted earlier upon a request from the Applicant with the payment of a fee.
Article 43
(1) The announcement shall be carried out by:
a. the placement in the Official Patent Gazette published periodically by the Directorate General; and/or.
b. the placement on a special announcement board provided exclusively for this purpose by the Directorate General which can be easily and clearly seen by the public.
(2) The Directorate General shall record the date of commencement of the announcement of an Application.
Article 44
(1) The announcement shall prevail for:
(a) 6 (six) months as of the date of announcement of an Application;
(b) 3 (three) months as of the date of announcement of an Application for a Simple Patent.
(2) The announcement shall list the followings:
(a) name and nationality of the Inventor;
(b) name and complete address of the Applicant, and the Proxy if an Application is filed through a Proxy;
(c) title of Invention;
(d) the Filing Date; and in the event an Application is filed with a Priority Right, the date, number and country where the Application was first filed;
(e) an abstract;
(f) the classification of Invention;
(g) drawings, if any;
(h) the number of announcement; and
(i) the number of Application.
Article 45
(1) Any person may see the announcement as referred to in Article 44 and may file in writing his comment and/or objection on an Application by stating the reasons therefore.
(2) Where there are any comments or objections as referred to in paragraph (1), the Directorate General shall immediately send a copy of the letter containing the comments and/or objections to the Applicant.
(3) The Applicant shall have the right to submit to the Directorate General a written denial and explanations with respect to such comments and/or objections.
(4) The Directorate General shall use the comments and/or objections, denials and/or explanations as referred to in paragraph (1) and paragraph (3) as additional information for consideration during the substantive examination.
Article 46
(1) After having consultation with the government agency of which the duties and authorities are related to the defense and security of the State, if needed, the Directorate General with the approval of the Minister may decide not to announce an Application, if it considers the announcement of the Invention to be potentially disturbing or contrary to the interest of the defense and security of the State.
(2) The decision not to announce an Application as referred to in paragraph (1) shall be notified by the Directorate General in writing to the Applicant or his Proxy.
(3) Any consultation held by the Directorate General with any other government agencies, including the forwarding of information concerning an Invention for which a Patent has been requested, which results in a decision not to announce the Application, shall not be considered as a violation of the
obligation to preserve the confidentiality of the Invention as referred to in Article 40 and Article 41.
(4) The provision as referred to in paragraph (3) shall not detract from the obligation of the government agencies concerned and their staff members to continue preserving the confidentiality of the Invention and the Application documents towards any third party.
Article 47
(1) An Application which is not announced as referred to in Article 46 shall be examined as to substance after 6 (six) months from the date of the decision not to announce the said Application.
(2) The examination as referred to in paragraph (1) shall be conducted without a payment of fee.
Part Two
Substantive Examination
Article 48
(1) A request for the examination of an Application mustbe filed in writing to the Directorate General with the payment of a fee.
(2) The procedure and requirements regarding the request for a substantive examination shall be further regulated by Presidential Decree.
Article 49
(1) A request for the substantive examination as referred to in Article 48 paragraph (1) shall be filed at the latest 36 (thirty six) months from the Filing Date.
(2) If a request for examination has not been filed withinthe period as referred to in paragraph (1), or the pertinent fee has not been paid, the Application shall be deemed withdrawn.
(3) The Directorate General shall notify the Applicant orhis Proxy in writing regarding the withdrawal of the Application as referred to in paragraph (2).
(4) If the request for examination asreferred to in paragraph (1) is filed before the end of the announcement period as referred to in Article 44 paragraph (1), the examination shall be conducted after the end of the announcement period.
(5) If the request for examination as referred to inparagraph (1) is filed after the end of the announcement period as referred to in Article 44 paragraph (1), the examination shall be conducted after the date of receipt of the request for substantive examination.
Article 50
(1) For purposes of the substantive examination, the Directorate General may request experts assistance and/or utilize appropriate facilities from other Government agencies or may request the assistance from Examiners of other Patent offices.
(2) The use of expert assistance, facilities, Examiners ofother Patent offices as referred to in paragraph (1) shall be performed by observing the provisions concerning the obligation to preserve the confidentiality as referred to Article 40 and Article 41.
Article 51
(1) A substantive examination shall be conducted by Examiners.
(2) The Examiners at the Directorate General shall hold the position of a functional official and shall be appointed and dismissed by the Minister in accordance with the prevailing rules and regulations.
(3) Upon the examiner as referred to in paragraph (2) shall be accorded a functional rank and allowances in addition to other rights in accordance with the prevailing regulations.
Article 52
(1) Where the Examiner reports that an Invention for which a Patent has been requested evidently contains vagaries or other significant deficiencies, the Directorate General shall notify the Applicant or his Proxy and request comments or the completion of such deficiencies.
(2) The notification as referred to in paragraph (1) shall clearly and specifically state the items considered to be vague or other significant deficiencies together with the reasons and standard or references used in the examination as well as the period for the completion of said deficiencies.
Article 53
If following the notification as referred to in Article 52 paragraph (1) the Applicant does not provide any clarification or complete the deficiencies, or does not make any changes or improvements on the Application within the period stipulated by the Directorate as referred to in Article 51 paragraph (2), the relevant Application shall be deemed withdrawn and the Directorate General shall notify the Applicant in writing.
Part Three
The Granting or Rejection of Applications
Article 54
The Directorate General shall make the decision asto approve or to refuse an Application for:
a. a Patent, at the latest 36 (thirty six) months from the date of receipt of the request for substantive examination as referred to in Article 48 or from the end of the announcement period as referred to in Article 44 paragraph (1) if the request for substantive examination was filed before the end of the
announcement period.
b. a Simple Patent, at the latest 24 (twenty four) months from the Filing Date.
Article 55
(1) If the result of the examination carried out by a examiner concludes that the Invention has fulfilled the provisions of Article 2, Article 3 and Article 5 and other provisions of this Law, the Directorate General may issue a Patent Certificate to the Applicant or his Proxy.
(2) If the result of the examination carried out by a examiner concludes that the Invention has fulfilled the provisions of Article 3, Article 5 and Article 6 and other provisions ofthis Law, the Directorate General may issue a Simple Patent Certificate to the Applicant or his Proxy.
(3) The Directorate General shall record and announce a Patent that has been granted, except for Patents, which concern with the defense and security of the State.
(4) The Directorate General may provide copies of the Patent document to any person in need upon the payment of a fee, except for Patents that are not announced as referred to in Article 46.
Article 56
(1) If the result of the examination carried out by the Examiner indicates that the Invention for which a Patent has been requested is not the Invention as referred to in Article 1, Article 2 or has not fulfilled the provisions of Article 2, Article 3, Article 5, Article 6, Article 35, Article 52 paragraphs (1) and (2), or is included among Inventions as referred to in Article 7, the Directorate General shall refuse the relevant Application and shall notify the Applicant in writing.
(2) The Directorate General shall also refuse an Application that has been divided, if the division has expanded the scope of Invention or the request for the division was filed after the end of period as referred to in Article 36 paragraph (2) or paragraph (3).
(3) If the result of the examination carried out by the Examiner indicates that the Invention for which a Patent has been requested has not fulfilled the provision of Article 36 paragraph (2), the Directorate General shall refuse parts of the Application and notify the Applicant in writing.
(4) The notification containing the refusal of an Application shall clearly state the reasons and considerations that constitute the basis for the refusal.
Article 57
(1) A Patent certificate shall be the proof of right on Patent.
(2) The Directorate General shall record the notification containing the refusal.
Article 58
A Patent shall be valid on the date of issuance of a Patent Certificate and shall be valid retroactively from the Filing Date.
Article 59
Provisions regarding the issuance of Patent Certificates, including the format and contents thereof and other provisions regarding the recording as well as the request for copies of Patent documents shall be further regulated by Government Regulation.
Part Four
Appeal Petitions
Article 60
(1) An appeal petition may be filed with respect to the refusal of an Application based on reasons and considerations regarding matters which are substantive in nature as referred to in Article 56 paragraph (1) or paragraph (3).
(2) An appeal petition shall be filed in writing by the Applicant or his Proxy to the Patent Appeal Commission with a copy delivered to the Directorate General.
(3) An appeal petition shall be filed by describing in detail the objections to the refusal of the Application as the result of substantive examination and stating the grounds therefore.
(4) The grounds as referred to in paragraph (3) must not constitute new reasons or explanations that expand the scope of Invention as referred to in Article 35.
Article 61
(1) An appeal petition shall be filed no later than 3 (three) months from the date of the notification of rejection of the Application.
(2) If the period as referred to in paragraph (1) has elapsed without an appeal petition, the refusal of the Application shall be deemed accepted by the Applicant.
(3) Where the refusal of an Application has been deemed accepted as referred to in paragraph (2), the Directorate General shall record and announce this fact.
Article 62
(1) An appeal petition shall be examined by the Patent Appeal Commission at the latest 1 (one) month from the date of filing of said petition.
(2) The Patent Appeal Commission shall produce its decision at the latest 9 (nine) months from the end of period as referred to in paragraph (1).
(3) Where the Patent Appeal Commission accepts and approves an appeal petition, the Directorate General shall be obliged to implement the decision of the Patent Appeal Commission.
(4) If the Patent Appeal Commission refuses an appealpetition, the Applicant or his Proxy may bring a legal action against the decision to the Commercial Court within the period of 3 (three) months from the date of receipt of the refusal.
(5) Upon the decision of the Court as referred to inparagraph (4), the Applicant may only file a cassation.
Article 63
The procedure of filing a request, examination as well as the settlement of appeals shall be further regulated by Presidential Decree.
Part Five
Patent Appeal Commission
Article 64
(1) The Patent Appeal Commission is a special independent agency and operates within the department in the field of Intellectual Property Right.
(2) The Patent Appeal Commission shall comprise a chairman who also acts as member, and members consisting of some experts in the necessary fields, and senior Examiners.
(3) The members of the Patent Appeal Commission as referred to in paragraph (1) shall be appointed and dismissed by the Minister for a service period of 3 (three) years.
(4) The chairman and deputy-chairman shall be elected from and by the members of the Patent Appeal Commission.
(5) To examine an appeal petition, the Patent Appeal Commission shall be establish a hearing board with an odd number, at a minimum of 3 (three) persons, one of whom shall be a senior Examiner who did not carry out the substantive examination of the relevant Application.
Article 65
The organizational structure, duties and functions of the Patent Appeal Commission shall be further regulated by a Government Regulation.