Prospective Changes In The Korean Intellectual Property Law Pursuant To The Korea - US Free Trade Agreement

1. Introduction

   After an extensive negotiation period, Korea has finally entered into a Free Trade Agreement with the United States of America ("KORUS FTA") on April 2, 2007. Following a request from the US for supplemental discussions, additional terms were discussed and entered on June 30, 2007. Currently, both nations are waiting for the Congress (US) and the National Assembly (Korea) to ratify the KORUS FTA. In the KORUS FTA, many topics related to the Intellectual Property ("IP") were included and significant portion of the Korean IP law is expected to undergo reconstruction. The Korean government has already developed a new proposal and presented it to the National Assembly for review. In this article, details of some of the major prospective changes in the Korean IP law pursuant to the KORUS FTA will be discussed.

2. Patent Law

   Extension of Patent Term for Examination Delays

   Under the current Korean Patent Law, patent term extensions are only permitted for inventions pertaining to pharmaceutical products and agricultural chemicals, where the criteria for obtaining patent term extension is outlined by another area of law (i.e. Korean Pharmaceutical Affairs Law) - it provides that a patentee who fails to enjoy patent rights for more than two years due to the governmental approval process of ensuring the safety be given up to a five-year term extension. However the revised bill allows extensions of patent terms for all patents that suffered delays during examination. Where the patent grant was delayed "more than four years after the filing date" or "three years after the filing of a request for examination", whichever is longer, the patentee may apply for a patent term extension for the delayed period.

   Extension of Grace Period

   While the current law allows 6 months grace period during which an inventor may file for a patent application after his voluntary publication of the invention, the new bill extends such period to 12months. This revision would allow inventors with sufficient time to make their invention public, determine its value and file for the patent application.

   Abolition of Cancellation Action for Patents

   Current Patent Law Article 116 stipulates that a patent invention which has not been continuously worked in Korea for a period of more than two year after falling under certain specified conditions may be cancelled by the KIPO or by the request of any interested party. This cancellation action would be entirely abolished by...