Practical Guide to the Korean Patent System｜Patent Attorney's In-Depth Explanation of KIPO, IPTAB, Patent Court, and Triple Punitive Damages

Key Points of This Article

• South Korea follows a first-to-file system combined with an examination-based system. Its structure is nearly identical to that of the Japanese Patent Act, making it easier for Japanese companies to formulate strategies
• Requests for examination must be filed within three years of the filing date (same as Japan’s three-year period); failure to file is deemed a withdrawal.
• No opposition system → Challenges are addressed through post-grant invalidation proceedings (opposition was abolished in 2017)
• Enforcement proceedings follow a three-tier system: the Intellectual Property Trial and Appeal Board (IPTAB) → the Intellectual Property Court → the Supreme Court (a specialized court unique to South Korea).
• The exception for loss of novelty is “12 months” (same as Japan); the deadline for PCT national phase entry is 31 months from the priority date
• Patent term extension (PTE) system available for pharmaceuticals and pesticides; maximum extension of 5 years

KOREA PATENT

A comprehensive guide to the Korean patent system and practice by a patent attorney well-versed in both Japanese and Korean practices. It systematically explains the process from application to KIPO examination, IPTAB trials, and Patent Court litigation across 12 sections.

Table of Contents

1. Executive Summary
2. Basic Structure and Legal Basis of the System
3. Comparison of Application Methods (Direct, PCT, Paris)
4. Standard Workflow and Timeline Management
5. Estimated Government Fees
6. Patent Requirements (Novelty, Inventive Step, and Disclosure Requirements)
7. Major Case Law and Practical Implications
8. Enforcement and Infringement Litigation
9. Patent Trial and Appeal Board (IPTAB) and Patent Court
10. Maintenance and Term Extension (PTE)
11. Differences Between Japanese and Korean Systems and Practical Considerations
12. Practical Checklist for Japanese Companies

Four Key Points to Keep in Mind in Korean Patent Practice

1. Classify application methods (direct filing, Paris Convention priority, PCT national phase entry) as "methods for securing a priority date" and "entry points into the Korean examination process"
2. While government fees can be objectively determined based on the Korean Intellectual Property Office’s fee schedule, managing the range of Korean patent attorney fees based on case complexity and the number of Office Actions is essential
3. Examination issues converge into a triangle comprising novelty (Article 29 of the Korean Patent Act) × inventive step (Article 29(2) of the Korean Patent Act) × disclosure requirements (Article 42 of the Korean Patent Act). Be mindful of Korea’s unique application of “mixed-date prior art.”
4. Disputes follow a three-tier system comprising the Intellectual Property Trial and Appeal Board (IPTAB), the Intellectual Property Court, and the Supreme Court. Unlike Japan, the specialized judicial court, the “Intellectual Property Court,” centrally handles intellectual property cases

Standard processing time: Approximately 12–16 months from the request for examination to the issuance of the first Office Action; typically 2–3 years until registration. This can be shortened to 6–12 months by utilizing the Priority Processing Program (PPH).

SME and Individual Fee Reductions: Korean small and medium-sized enterprises (SMEs) and individual inventors are eligible for fee reductions of 30–70%. This may also apply to Korean subsidiaries of Japanese companies, making it worth considering as an intellectual property benefit of establishing a local legal entity.

Key Points of the 2019 Amendment: South Korea introduced a system of triple damages for patent infringement (up to three times punitive damages), which is rare globally (Patent Act §128). If intentional infringement is established, a court may order damages of up to three times the actual damages, significantly enhancing bargaining power in licensing negotiations.

Remedies Available to Patent Holders

• Injunctions (§126)—Injunction against the manufacture, sale, and use of infringing products
• Damages (§128) — Actual damages + lost profits + potential for triple damages
• Restitution of Unjust Enrichment (Civil Code §741)
• Measures to Restore Reputation (§131)—Apology advertisements, etc.
• Request for destruction of infringing goods (§126(2))

Extension System for Pharmaceuticals and Pesticides

• Eligibility: Periods during which necessary experiments could not be conducted due to the product being classified as a pharmaceutical or pesticide (requiring approval from the Ministry of Food and Drug Safety)
• Extension Period: Up to 5 years
• Application Deadline: Within 3 months of the date of approval, and no later than 6 months prior to the expiration of the patent term
• Provisions: Patent Act §§ 89–92

• Strictly adhere to the priority period (12 months) relative to the Japanese parent application; create a calendar
• Ensure the quality of the Korean specification (KIPO examination standards and standardized Korean patent terminology)
• Optimize the number of claims (KRW 44,000 surcharge per claim)
• If filing via PCT, plan for the 31-month transition period and submission of translations

• A request for examination must be filed within 3 years of the filing date (failure to file is deemed a withdrawal)
• Responses to Office Actions are typically due within 2 months; extensions are available for up to 4 months (30 days × 4 times)
• Processing can be expedited through priority examination requests (PPH, Green Technology, etc.)
• After a rejection decision: Appeal to the IPTAB (within 30 days) → Patent Court (within 30 days)

• Payments for the first three years are due in a lump sum at the time of registration; annual payments are due starting from the fourth year
• Upon discovery of infringement, file jointly with the Seoul Central District Court and IPTAB (strategy to stay invalidation proceedings)
• Early assessment of whether triple punitive damages can be sought by proving willful infringement
• For pharmaceuticals and pesticides, do not overlook the PTE application (within 3 months of the disposition date)

Consultation on Korean Patent Applications

EVORIX Intellectual Property Law Firm provides comprehensive support for patent applications and enforcement in major Asian countries, including South Korea. From designing IP portfolios spanning Japan and South Korea to responding to KIPO rejections, IPTAB trials, and Patent Court litigation, our patent attorneys—with extensive practical experience and close collaboration with local agents—are here to assist you.

Go to the Inquiry Form → View the Consultation Process