Transitional provisions: Priority claim based on earlier application; division

With respect to a patent application for invention or utility model which is filed prior to the implementation of the November 29, 2011, amendment of this Act with priority claim made pursuant to the former Article 29, if the prior patent application has not been published or the decision of rejection has not become final and binding, Paragraph 1 of Article 30 shall apply.

With respect to an examination decision regarding patent application for invention rendered prior to the implementation of the November 29, 2011, amendment to this Act, if the time period stated in Subparagraph 2, Paragraph 2 of Article 34 has not expired, Subparagraph 2, Paragraph 2 and Paragraph 6 of Article 34 shall apply.

Claim of priority

An applicant claiming priority in accordance with the preceding article shall simultaneously make a declaration with respect to the following when filing a patent application:

1. the filing date of the first patent application;
2. the country or member of WTO in which the first patent application was filed; and
3. the application number of the first patent application.

Within sixteen (16) months after the earliest priority date, the applicant shall submit a certified copy of the first patent application issued by the foreign patent authority under the preceding paragraph.

In case of a violation of Subparagraph 1 or Subparagraph 2 of Paragraph 1 or the preceding paragraph, the priority claim shall be deemed not to have been made.

Where an applicant unintentionally fails to claim priority claim at the time of filing, or where the priority claim is deemed not to have been made as prescribed in violation of Subparagraph 1 or Subparagraph 2 of Paragraph 1, the applicant may, within sixteen (16) months after the earliest priority date, apply for reinstatement of priority claim, pay the required fees and undertake actions set forth in Paragraph 1.

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Priority claim based on earlier application

An applicant filing a subsequent patent application based on an earlier patent application for invention or utility model in the ROC may make a priority claim with respect to the invention or utility model disclosed in the description, claim(s) or drawing(s) submitted for the earlier patent application. This provision shall not apply under any of the following circumstances:

1. where a period of twelve (12) months has elapsed after the filing date of the earlier patent application;
2. where priority has been claimed in accordance with the provisions of Article 28 or this article in respect of the invention or utility model disclosed in the earlier patent application;
3. where the earlier patent application is a divisional patent application prescribed under Paragraph 1 of Article 34 or Paragraph 1 of Article 107, or a converted patent application prescribed under Paragraph 1 of Article 108;
4. where the earlier patent application is a patent application for invention that has been published or has been rejected finally and bindingly;
5. where the earlier patent application is a patent application for utility model that has been published or has been rejected finally and bindingly; or
6. where the earlier patent application has been withdrawn or dismissed.

The earlier patent application referred to in the preceding paragraph shall be deemed to have been withdrawn upon an expiry of fifteen (15) months after its filing date.

Priority claimed shall not be withdrawn upon an expiry of fifteen (15) months after the filing date of the earlier patent application.

In the event that a subsequent patent application filed with priority claim in accordance with Paragraph 1 is withdrawn within fifteen (15) months after the filing date of the earlier patent application, the priority claim thus made shall be deemed to have been withdrawn at the same time.

Where an applicant claims two or more priorities for a patent application, the calculation of priority period shall be on the basis of the earliest priority date.

For a patent application filed with priority, examination on its patentability shall be based on the priority date.

Where a priority claim is made in accordance with Paragraph 1, the filing date and the application number of the earlier patent application shall be declared at the time of filing. If such declaration is not made, priority claim shall be deemed not to have been made.

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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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