Patent Cancellation in Korea

Like Japan, Korea adopted a new procedure to cancel patents registered on or after March 1, 2017. A cancellation request may be submitted from the registration of a patent until 6 months from the publication of the patent.

 

Still invalidation actions to patents are available simultaneously. Previously, non-interested parties may file an invalidation trial against a patent within 3 months of the patent registration and interested parties may file an invalidation action at any time.

Under the new law, any party may file a cancellation action against a patent within 6 months of the patent publication date. But non-interested parties may no longer file invalidation actions.

Unlike invalidation trials, grounds for cancellation are limited to (i) lack of novelty or inventive step in view of "written" publications, including patent and non-patent literature (as opposed to public use or knowledge) and (ii) violation of the first-to-file rule. Other grounds of patent invalidity must be asserted at an Invalidation Trial.

In case any claim of the patent is cancelled, the patentee may appeal to the Patent Court within 30 days. However, in case the cancellation request is dismissed or rejected (IPT held the patent valid), the petitioner is not allowed to appeal.