Untitled Document

In many cases, the Utility Model Law applies mutatis mutandis, the provisions of the Patent Law. (Utility Model Law, Articles 4, 20,28bis, 34, 42, 46, 48, 56, 72 and 77). Here, only the distinguishable points of the Utility Model Law are introduced.

The subject matter of utility model is a device relating to the shape, structure, or a combination of articles with a technical creation utilizing the rules of nature. (Utility Model Law, Article 5(1)). However, a device which is identical with or similar to the national flag or decorations, or which is liable to contravene public order or morality or to injure public health shall not be registered. (Utility Model Law, Article 7)

Utility model will be registered by a simple formality examination without a substantial examination. (Utility Model Law, Article 12 and 35(2))

Any person may request a technical evaluation of a device claimed in a utility model application or registered utility model from the Commissioner of the Korean Intellectual Property Office. Where the utility model application or registered utility model contains two or more claims, a request may be made for each claim. (Utility Model Law, Articles 21). An owner of a utility model right or an exclusive licensee may exercise his or her right against a person who infringes his utility model right or exclusive license only after he or she serves a warning on that person by presenting a copy of the certificate of the decision to sustain the registration of the utility model. (Utility Model Law, Articles 44, as revised effective on July 1, 2001)

A patent applicant may also file for a utility model registration with respect to the same technical subject matter prior to receipt of a certified copy of the decision to grant a patent, or within 30 days from receipt of a certified copy of the decision of final rejection. (Utility Model Law, Article 17(1)). However, if both rights are allowed to be registered, one of the two must be selected. In other words, the patent right can be registered only if the utility model right is withdrawn. (Patent Law, Article 35(2))

The term of a utility model right shall be ten (10) years from the date of filing of the utility model application, following the registration of establishment of the utility model right. (Utility Model Law, Article 36(1))