Grounds for rejection decision

When a patent application for design is in violation of any of the provisions set forth in Articles 121 to 124, Article 126, Article 127, Paragraphs 1 to 3 of Article 128, Paragraphs 1 and 2 of Article 129, Paragraph 3 of Article 131, Paragraph 3 of Article 132, Paragraph 2 of Article 133, Paragraph 4 of Article 34 applicable mutatis mutandis under Paragraph 1 of Article 142, Paragraph 2 of Article 43 applicable mutatis mutandis under Paragraph 1 of Article 142, and Paragraph 3 of Article 44 applicable mutatis mutandis under Paragraph 1 of Article 142 of this Act, a decision of rejection shall be rendered.

Definition of design "'Design' means the creation made in respect of the shape, pattern, color, or any combination thereof, of an article as a whole or in part by visual appeal. "For computer generated icons (Icons) and graphic user interface (GUI) applied to an article, an application may also be filed pursuant to this Act for obtaining a design patent.

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Substantial conditions "A design which is industrially applicable may be granted a design patent upon application in accordance with this Act, provided any of the following does not exist: "1. an identical or similar design was disclosed in a printed publication prior to the filing of the patent application; "2. an identical or similar design was publicly exploited prior to the filing of the patent application; or "3. the design was known to the public prior to the filing of the patent application. "A design that is without the circumstances prescribed in the preceding paragraph but can be easily conceived by a person ordinarily skilled in the art based on prior art shall not be patented. "A disclosure made by or against the applicant’s will shall not be deemed as one of the circumstances that would preclude the grant of an design patent prescribed in the subparagraphs of Paragraph 1 or the preceding paragraph, provided that the concerned patent application is filed within six (6) months after the date of the disclosure. "For the publication in a gazette made in this country or a foreign country in accordance with the laws as the consequence of filing a patent application and made by the applicant’s will, the preceding paragraph is not applicable.

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Design deemed as lack of novelty "Where a design claimed in a patent application for design is identical or similar to a design disclosed in the description or drawing(s) of an earlier-filed patent application for design which is published after the filing of the later-filed patent application for design, the design patent shall not be granted; however, this shall not apply where the applicant of the later-filed patent application for design is also the applicant of the earlier-filed patent application for design.

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Statutory exclusion "A design patent shall not be granted in respect of any of the following: "1. the shape of an article solely dictated by its function; "2. fine arts; "3. the layout of integrated circuits and electronic circuits; or "4. an article contrary to public order or morality.

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Disclosure "The description and drawing(s) shall fully disclose the design in a manner clear and sufficient for it to be understood and carried out by a person ordinarily skilled in the art of the design. "The manners of disclosure for description and drawing(s) shall be prescribed in the Enforcement Rules of the Patent Act.

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Application and restriction of derivative design patent "For two or more similar designs owned by the same person, applications may be filed for a design patent and its derivative design patent(s). "The filing date of a patent application for derivative design shall not be earlier than the filing date of the original patent application for design. "A patent application for derivative design filed after the publication of the original design patent is not acceptable. "An applicant shall not file a patent application for derivative design patent if the design therein is only similar to another derivative design patent but not to the original design patent.

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First-to-file principle "Where two or more patent applications are filed for the same or similar design(s), only the earlier-filed application can be granted. The above shall not apply if the priority date claimed for the later-filed application is earlier than the filing date of the earlier application. "Where the filing date and the priority date referred to in the preceding paragraph are the same, the applicants shall be notified to reach an agreement with respect to the matter concerned. If such an agreement cannot be reached, none of the applications shall be granted. If the said patent applications are filed by the same applicant, the applicant shall be notified to select one patent application within a specified time period; failure to make a selection within the time period shall result in the rejection of all such patent applications. "While the applicants concerned are in the process of reaching an agreement, the Specific Patent Agency shall require that these applicants report the results of the negotiation within an appropriate time period. If the said report is not provided within the specified time period, it shall be deemed that the agreement has not been reached. "The above three paragraphs shall not apply to any of the following: "1. the applications for the original design and its derivative design(s); or "2. the applications for two or more derivative designs that originate from the same design.

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Unity; design for a set of articles "An application for a design patent shall relate to one design. "Two or more articles belonging to the same class and are customarily sold or used together may be filed as one design. "A patent application for design shall indicate the article to which the design is applied.

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Conversion between design patent and derivative design patent "Where a patent application for design is converted into a patent application for derivative design or where a patent application for derivative design is converted into a patent application for design, the filing date of the original patent application shall be deemed to be the filing date of the converted patent application. "A request for the conversion shall not be made under any of the following circumstances: "1. after a written decision allowing the original application is served; or "2. two (2) months from after the date on which a written decision rejecting the original application is served. "A converted patent application for design or derivative design shall not extend beyond the scope of content disclosed in the description or drawing(s) of the original application as filed.

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Conversion into design patent "Where an application originally filed for invention or utility model patent is converted into a patent application for design, the filing date of the original application shall be deemed to be the filing date of the converted patent application for design. "A request for the conversion shall not be made under any of the following circumstances: "1. after a written decision allowing the original patent application is served; "2. two (2) months after the date on which a written decision rejecting the original patent application for invention is served; or "3. thirty (30) days after the date on which a written decision rejecting the original patent application for utility model is served. "A converted patent application shall not extend beyond the scope of content disclosed in the description, claims, or drawings of the original patent application as filed.

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Foreign language documents

The description and drawing(s) provided in a foreign language pursuant to Paragraph 3 of Article 125 shall not be amended.

The Chinese translation provided pursuant to Paragraph 3 of Article 125 shall not extend beyond the scope of content disclosed in the original foreign language documents as filed.

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Provisions applied mutatis mutandis to design patent "The provisions of Article 28, Article 29, Paragraphs 3 and 4 of Article 34, Article 35, Article 36, Article 42, Paragraphs 1 to 3 of Article 43, Paragraph 3 of Article 44, Article 45, Paragraph 2 of Article 46, Article 47, Article 48, Article 50, Paragraphs 1, 2 and 4 of Article 52, Paragraph 2 of Article 58, Article 59, Articles 62 to 65, Article 68, Article 70, Article 72, Paragraphs 1, 3 and 4 of Article 73, Articles 74 to 78, Paragraph 1 of Article 79, Articles 80 to 82, Articles 84 to 86, Articles 92 to 98, and Articles 100 to 103 shall apply mutatis mutandis to design patent. "In the case of a patent application for design, the time period specified in Paragraph 1 of Article 28 shall be six (6) months. "In the case of a patent application for design, the time period specified in Paragraphs 2 and 4 of Article 29 shall be ten (10) months. "In the case of a patent application for design, the time period specified in Subparagraph 3, Paragraph 1 of Article 59 shall be six (6) months.

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Divisional application of invention patent

A patent application that substantially contains two or more inventions may, upon notice by the Specific Patent Agency or upon request by the applicant, be divided into two or more divisional applications.

A request for division shall be filed within any of the following time periods:

1. before a reexamination decision on the original patent application is rendered; or
2. within three (3) months after the date on which an approval decision for the original patent application or reexamination is served.

The filing date of the divisional patent application shall be the same as the filing date of the original application. Where the priority claim has been made, the applicant may claim priority for the divisional patent application.

The divisional patent application shall not extend beyond the scope of content disclosed in the description, claim(s), or drawing(s) of the original patent application as filed.

For the divisional patent application filed in accordance with Subparagraph 1 of Paragraph 2, the examination thereof shall resume the completed examination procedure of the original patent application.

For the divisional patent application filed in accordance with Subparagraph 2 of Paragraph 2, it shall be based on the invention(s) disclosed in the description or the drawing(s), but shall not be the same as that have been approved in the original patent application; the examination thereof that has been conducted before the original patent application is approved shall be resumed.

The description, claim(s), or drawing(s) of the original patent application that have been approved may not be altered and shall be published based on the claim(s) and drawing(s) as originally approved.

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Foreign language documents

Where a patent applicant submits a description, claim(s), and drawing(s) prepared in a foreign language pursuant to Paragraph 3 of Article 25, such foreign language documents shall not be amended.

The Chinese translation submitted pursuant to Paragraph 3 of Article 25 shall not extend beyond the scope of content disclosed in the original foreign language documents as filed.

Any correction of translation errors in the Chinese version as stated in the preceding paragraph shall not extend beyond the scope of content disclosed in the original foreign language documents as filed.

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