Patent Appeals and Reexamination in South Korea
After a final patent rejection in Korea, an applicant may request re-examination with an amendment or file an appeal with the Intellectual Property Trial and Appeal Board (IPTAB). Both procedures generally must be initiated within three months after service of the rejection decision.
Re-examination is appropriate when a supported amendment can resolve the rejection without removing the commercially relevant scope. An IPTAB appeal is appropriate when the applicant disputes the examiner's legal standard, factual finding, claim construction or technical analysis.
Re-examination under Article 67-2
A request for re-examination after rejection must be accompanied by an amendment to the specification or drawings and filed within three months after service of the rejection decision. The prior rejection is treated as cancelled when a valid request is made, and the request cannot be withdrawn.
The official fee is KRW 100,000 plus KRW 10,000 for each claim. Re-examination may be suitable when:
- a supported amendment distinguishes the cited art while retaining useful scope;
- a clarity or support objection can be corrected from the original disclosure;
- the examiner identified potentially allowable subject matter; or
- an examiner interview established wording likely to resolve the rejection.
The amendment should address each remaining ground of rejection and comply with the applicable amendment limits. An amendment made only to reopen examination may add prosecution statements or limitations without resolving the refusal.
Article 67-2 also permits an applicant to request re-examination after a patent decision and before registration, provided that the request is accompanied by an amendment and the statutory exclusions do not apply. This procedure can be used to amend an allowed application before registration, but the application is reopened for examination.
Appeal to IPTAB
Article 132-17 permits an applicant to appeal a patent rejection within three months after service of the decision. Under Article 15, that appeal period may be extended once, for no more than 30 days, on request or by MOIP. The extension should be requested rather than assumed.
The appeal brief should identify the error in the rejection, address the cited evidence and state the legal and technical basis for reversal. An appeal may be appropriate when:
- a cited reference does not disclose a required claim limitation;
- an inventive-step combination depends on hindsight;
- the examiner misconstrued the Korean claim;
- the wrong legal standard was applied;
- further narrowing would remove commercially relevant scope; or
- the dispute requires a formal evidentiary record.
The record should be prepared with possible Patent Court review in mind. Arguments should identify the disputed claim language, technical facts and supporting evidence rather than repeat the Office Action response.
Comparison of the procedures
| Issue | Re-examination | IPTAB appeal |
|---|---|---|
| Amendment | Required under Article 67-2 | Not the basis of the appeal procedure |
| Decision-maker | Examiner | Administrative trial panel |
| Typical use | Rejection curable by supported amendment | Dispute over law, facts, claim construction or technical reasoning |
| Relative formality and cost | Generally lower | Generally higher |
| Further review | IPTAB appeal after a renewed rejection | Patent Court action after an adverse decision |
Rejection after re-examination
If the examiner issues another rejection after re-examination, the applicant may appeal that decision to IPTAB within the applicable three-month period. The amendment and arguments made during re-examination become part of the record considered in deciding the appeal.
Patent Court and Supreme Court
Article 186 requires an action to cancel an adverse IPTAB decision to be filed with the Patent Court within 30 days after service of the decision. The period is peremptory. Any additional period stated in or issued with the decision should be checked immediately.
A further appeal from the Patent Court may be filed with the Supreme Court. A refusal generally reaches judicial review only after the IPTAB proceeding.
Divisional applications
Before filing the re-examination request or appeal, the applicant should determine whether a divisional application is needed for alternative subject matter, a different claim category or an observable commercial implementation.
The available divisional filing period depends on the procedural posture and may close during the rejection and appeal process. It should be calculated at the same time as the re-examination or appeal deadline.
Selection factors
The selection should address the amendment support, effect on product coverage, examiner comments on allowable subject matter, nature of the legal or technical disagreement, evidence needed for an appeal and scope to be retained in a divisional application.
Official references
- Patent Act Article 67-2
- Patent Act Article 132-17
- MOIP refusal-appeal procedure
- MOIP patent fee schedule
Related Korean patent guidance
- Appeals from Korean Patent Rejection Decisions
- Korean Patent Office Actions: Response Deadlines
- Divisional Patent Applications in Korea
- Patent Invalidation and Cancellation Proceedings in Korea
Legal and editorial review: July 16, 2026. MOIP is Korea's current IP authority; some official English pages may retain KIPO or transitional terminology.
This article provides general information, not legal advice. The applicable deadline and procedure must be confirmed from the decision and the current law.
