With the continuous increase of economic and trade exchanges between China and South Korea, more and more Chinese companies are starting to apply for patents in South Korea. However, many Chinese applicants are not very familiar with South Korea's patent law, especially after receiving a rejection decision on their patent application, and often do not know how to respond next. This article will provide a detailed explanation of the relief procedures for Korean patent applications that have been rejected based on practical experience.

In South Korea, if the applicant fails to overcome the defects pointed out by the examiner after responding to the examination opinion notice issued by the examiner, the examiner will make a rejection decision. In addition, if the applicant does not respond to the examination opinion notification, the examiner will also make a rejection decision.

The applicant may submit a request for re examination to the Korean Patent Office or to the Korean Patent Court (KIPT) (equivalent to China's Patent Reexamination Board) within 3 months from the date of receiving the rejection decision.

This deadline allows for a maximum of two extensions, each lasting 30 days, but not a one-time extension of 60 days.

1、 Regarding the request for re examination

In response to South Korea's rejection decision, if a request for re examination is to be made, the claims must be amended. The re examination process in South Korea continues to be conducted by the original examiner, which is equivalent to the pre examination in China's re examination process.

New examination opinion notices may also be issued during the re examination process in South Korea. In the case of issuing a new notice of examination opinion, the examiner may issue a second rejection decision or authorization decision based on the response to the notice of examination opinion. If a second rejection decision is received at this time, the applicant still has the opportunity to request a review of the second rejection decision.

In South Korea, applicants can only make one request for re examination, and if they receive a rejection decision again, they cannot make another request for re examination. The response period for re examination requests is the same as the usual examination opinion notification, usually 2-3 months, and the specific period may vary depending on the examiner.

The re examination procedure provides the applicant with an opportunity to modify the claims, but the modification method is strictly limited, allowing only a reduction in the scope of protection of the claims based on the original basis. When requesting a re examination in South Korea, it is limited to the following modification methods:

1. Modify the scope of protection of claims by limiting or deleting them;

2. Modify the erroneous recorded content;

3. Make the unclear parts clearer;

4. For claims that exceed the scope of modification, modify them to the original recorded claims, or simultaneously make the modifications 1-3 mentioned above.

If further explanation is needed for the above modification method 1, technical features can be added to the independent or dependent claims to limit the claims; You can also choose to delete some dependent claims. However, it should be noted that independent claims cannot be deleted, nor can only some technical features in independent or dependent claims be deleted.

In addition, although it is not explicitly stipulated in the above allowed modification methods, dependent claims can be added when South Korea requests a re examination. At this point, the newly added claims do not need to be completely consistent with the statements in the specification, as long as they can be supported by the specification and drawings. That is, it can be a summary of the instructions and accompanying drawings. However, if the level of generalization is too high, it may sometimes be considered as adding new content.

2、 Regarding the Review Procedure

Regarding the rejection decision in South Korea, if the applicant wishes to request a review, it is important to note that the claims cannot be modified during the review process. In other words, the review process in South Korea does not accept changes to the claims.

In the reexamination procedure, a panel composed of the Patent Trial Court will judge whether the examiner's examination opinion is reasonable. If the panel determines that the examiner's opinion is unreasonable, the rejection decision will be revoked; On the contrary, if the examiner's opinion is deemed reasonable, the rejection decision will be upheld and a conclusion document will be issued, stating that the reasons for dissatisfaction with the trial are not valid. In addition, the review process in South Korea usually takes about one year to complete.

3、 Comparison between Re examination Procedure and Re examination Procedure

01 Opportunity for amendment of claims

In response to South Korea's rejection decision, if a request for review is made, the claims cannot be amended; If a request for re examination is made, the claims must be amended. That is to say, the re examination procedure provides the applicant with an opportunity to modify the claims.

02 Review cycle

The review cycle for re examination requests is usually 2-3 months, while the review cycle for re examination requests generally takes about a year.

4、 Suggestions for responding to the rejection decision

When receiving a rejection decision from South Korea, it is usually recommended to submit a request for re examination by amending the claims. Compared with directly initiating a re examination, the re examination procedure not only has a shorter examination period (about 2-3 months), but also increases the possibility of patent application being granted patent rights by modifying the claims.

Especially in the case of rejection due to lack of creativity, the applicant may add new dependent claims to further highlight the differences while modifying the independent claims and clarifying their differences from the reference documents when requesting a re examination. This approach can avoid the risk of a second rejection decision due to the examiner not recognizing the creativity of the amended independent claims.

If the examiner in South Korea considers that the amended independent claims still lack creativity, but recognizes the creativity of the newly added dependent claims, they usually issue a notice of examination opinion instead of directly making a second rejection decision.

With the continuous deepening of economic and trade cooperation between China and South Korea, the number of patent applications by Chinese companies in South Korea will continue to increase. I hope the above content can provide useful references for enterprises to gain a deeper understanding of the Korean patent examination process and remedies, thereby helping them take the initiative in overseas intellectual property layout and future business development.