韓國發明、新型適用同一個優先權規定：發明專利法Article 54, 55
重點有：
- 在揭露相同發明的條件下，主張優先權的後申請案的專利性判斷可追溯先申請案的優先權日
- 主張優先權的後申請案應於優先權日後12個月內提出申請
- 主張優先權應提出最早申請案的優先權相關文件，包括專利說明書與申請書
- 後申請案可主張複數優先權
- 相關優先權文件應於"最早（若有多數優先權）"申請案申請日後16個月內提出
- 如果沒有在規定時間內提出優先權文件，將失去主張優先權的權利
- 符合主張優先權的申請人可以於"最早（若有多數優先權）"申請案申請日後16個月內修正或增加優先權的主張。換句話說，優先權主張可以候補！
- 不得主張優先權的原因有：
.後申請案申請時，相同發明的最早申請案申請日已經超過一年
.較早申請案為分割案
.較早申請案為改請案（converted application）
.後申請案申請時，較早申請案已經拋棄、無效或是已經撤銷
.後申請案申請時，較早申請案經審理已經審定（專利審查或訴訟核准、駁回）
.較早申請案也曾主張優先權，特別是來自PCT的申請案
[英文版]
Article 54
Priority Claim under Treaty
(1) If a national of a State party to the treaty that recognizes under the treaty the priority
for a patent application filed by a national of the Republic of Korea has filed a patent
application in the State party to the treaty or another State party to the treaty and
makes a priority claim for a patent application filed in the Republic of Korea for the same
invention, the filing date in the State party to the treaty is deemed to be the filing date
in the Republic of Korea while applying Articles 29 and 36. Where a national of the
Republic of Korea who has filed a patent application in the State party to the treaty that
recognizes under the treaty the priority for patent applications filed by nationals of the
Republic of Korea makes the priority claim for a patent application in the Republic of
Korea for the same invention , this provision also applies.
(2) A person making the priority claim under paragraph (1) shall file a patent application
making the priority claim within one year from the filing date of the earliest application
which forms a basis of the priority claim.
(3) A person making the priority claim under paragraph (1) shall specify the purport of the
priority claim, the name of the country in which the application was initially filed and the
filing date of the application in the written patent application at the time of filing.
(4) A person who has made the priority claim under paragraph (3) shall submit to the
Commissioner of the KIPO the documents prescribed in paragraph (i) or the written
statement prescribed in paragraph (ii). However, the written statement referred to in
paragraph (ii) must be submitted only if the country is prescribed by Ordinance of the
Ministry of Knowledge Economy:
(i) a written statement certified by the government of the country where the application
was initially filed and setting forth the filing date of the patent application and a
certified copy of the description and drawing(s) of the patent application; or
(ii) a written statement setting forth the application number of the patent application in
the country where the application was initially filed.
(5) Documents under paragraph (4) shall be submitted within one year and four months of
the earliest date among those prescribed in the following subparagraphs:
(i) the date on which the application was initially filed in the State party to the treaty;
(ii) where the patent application contains other priority claims under Article 55(1), the
filing date of the application that would be the basis for the priority claim; or
(iii) where a patent application contains other priority claims under paragraph (3), the
filing date of the application that would be the basis for the priority claim.
(6) Where a person who has made the priority claim under paragraph (3) fails to submit the
document prescribed under paragraph (4) within the designated period under paragraph
(5), the priority claim loses its effect.
(7) A person who complies with the requirements of paragraph (2) among the persons who
have made the priority claim under paragraph (1) may amend or add the priority
claim(s) within one year and four months from the earliest date among those prescribed
under paragraph (5).
Article 55
Priority Claim Based on a Patent Application etc.
(1) An applicant for a patent may make the priority claim based on a invention disclosed in
the description or drawing(s) originally attached to a written application of an earlier
application for a patent or utility model registration (referred to as “an earlier
application”, hereinafter), for which the applicant has the right to obtain a patent or
utility model registration. However, this shall not apply to the cases which fall under any
of the following subparagraphs:
(i) where the patent application is filed more than one year after the filing date of the
earlier application;
(ii) where the earlier application is a divisional application under Article 52(2) (including
those cases to which this Article applies mutatis mutandis under Article 11 of the
Utility Model Act) or a converted application under Article 53 of this Act or Article 10
of the Utility Model Act;
(iii) where the earlier application has been abandoned, invalidated, or withdrawn when
the patent application is filed;
(iv) where an examiner's decision to grant or reject the earlier application or a trial
decision thereto has become final and binding, when the patent application is filed.
(2) A person making the priority claim under paragraph (1) shall state the purport of the
priority claim and indicate the earlier application in the written patent application when
the patent application is filed.
(3) A patent application that contains a priority claim under paragraph (1) is deemed to have
been filed when the earlier application was filed when Articles 29(1) or (2), and (3)
(main sentence), 30(1), 36(1) to (3), 96(1)(iii), 98, 103, 105(1) and (2), 129, and
136(4) (including those cases to which Article 136(4) applies mutatis mutandis under
Article 133bis(4)) of this Act, Article 7(3) and (4) and 25 of the Utility Model Act and
Articles 45 and 52(3) of the Design Law are applied to an invention that is identical to
the invention that have been disclosed in the description or drawing(s) originally
attached to a written application of the earlier application that is the basis for the
priority claim.
(4) In applying the main sentence of Article 29(3) of this Act and the main sentence of
Article 4(3) of the Utility Model Act, an invention disclosed in the description or
drawing(s) originally attached to a written application of a patent application containing
a priority claim under paragraph (1), that is identical to an invention disclosed in the
description or drawing(s) originally attached to a written application of an earlier
application that is the basis for the priority claim, is deemed to have been laid open with
regard to the earlier application that is the basis for the priority claim at the time when
the application is laid open or at the time of publication of registration.
(5) Where the earlier application falls under any of the following subparagraphs, paragraphs
(3) and (4) of this Article shall not apply to an invention, among inventions disclosed in
a description or drawing(s) originally attached to a written application of the earlier
application, disclosed in a description or drawing(s) at the time of filing of a patent
application that forms the basis of priority claim with regard to the earlier application:
(i) the earlier application contains a priority claim under paragraph (1); or
(ii) the earlier application contains a priority claim under Article 4D(1) of the Paris
Convention for the Protection of Industrial Property.
(6) In applying paragraph (4), where the earlier application falls under one of the following
subparagraphs, “an invention or device described in the description, claim(s) or
drawing(s) of both the international application as of the international filing date and its
translation” in Article 29(4) reads "an invention or device described in the description,
claim(s) or drawing(s) of the international application as of the international filing date”:
(i) the earlier application is an international application that is deemed to be a patent
application in accordance with Article 199(1) (including an international application
that is deemed to be patent application in accordance with Article 214(4)); or
(ii) the earlier application is an international application that is deemed to be a utility
model registration application in accordance with Article 34(1) of the Utility Model
Act (including an international application that is deemed to be a utility model
registration application in accordance with Article 40(4) of the Utility Model Act).
(7) A person who makes the priority claim and complies with the requirements under
paragraph (1) may amend or add the priority claim(s) within one year and four months
from the filing date of the earlier application (the earliest filing date if two or more
earlier applications exist).
Ron
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