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Trial and Appeal
- What is a trial and appeal for IP dispute resolution?
Trials and appeals refer to a special administrative procedure in which a panel of administrative judges of the Intellectual Property Trial and Appeal Board (IPTAB) hears a case in order to settle a dispute related to an examiner's decision on a patent, utility model, industrial design or trademark application, as well as a dispute related to a registered right as a result of such decision.
- How can I file a petition for a trial and/or appeal?
In order to file a petition for a trial and/or appeal before the IPTAB, a written petition should be prepared and submitted to the President of IPTAB. Once a written petition for trial and appeal is filed, the proceeding is as follows: Formality Examination → Decision to Institute a Trial/Appeal (or if necessary, "Issue an Order to Amend") → Hearing → Trial decision.
- After I file a petition, approximately when will I be able to learn the results of a trial?
Although the pendency may vary depending on the different types of trial or appeal, it is generally decided on a first-come/first-served basis and takes approx. 8 months on average from the date of the filing of the petition until a trial decision.
In the meantime, it should be noted that IPTAB provides fast-track and accelerated trial for cases which require an expedited decision, including trials with pending infringement lawsuits. IPTAB has set a target of issuing a decision within 3 months for fast-track trials and 6 months for accelerated trials from the date of filing a petition.
- Where can I find information on final decisions by the IPTAB?
Final decisions are available for search and download by visiting the "KIPRIS" website (www.kipris.or.kr). Please note that in order to prevent disclosure of personal information, documents go through a separate procedure necessary to remove confidential information before being published. In that sense, decisions will be available to the public approximately 1 month after the decision is rendered.
- If the deadline for filing a document to the IPTAB, Patent Court or Supreme Court expires or falls on weekend or holiday, what should I do?
When the document is to be filed before the IPTAB and the deadline falls on weekend or holiday, Article 14(4) of the Patent Act shall apply. Such period shall expire on the following working day if the deadline falls on a holiday. However, for the period for filing a litigation for revocation of a trial decision or filing an appeal against Board's decision, Article 14(4) of the Patent Act does not apply in the calculation of the time period for the deadline nor is it separately defined in the Patent Act or Administration Litigation Act. Therefore, pursuant to Article 170 of the Civil Act in accordance with Article 8 of the Administration Litigation Act, Article 161 of the Civil Act shall apply to the deadline, which prescribes that "where the last day of a period falls on a Saturday or a national holiday, such period shall end on the following day." Although, it should be noted that the deadline my fall on a Labor day as it is not considered "a Saturday or a national holiday" according to Article 161 of the Civil Act.
Regarding the effective date of document submission, if a document is submitted to the IPTAB by mail, it shall be deemed to be filed on the date of the postmark stamped on the cover in which such document was mailed according to Article 28(2) of the Patent Act. However, documents submitted to the Patent Court or the Supreme Court shall be considered submitted on the actual date of receipt without exception.
- Is it possible to withdraw the proceeding?
A withdrawal of petition refers to an act of withdrawing all or a part of a proceeding by the petitioner. A request to withdraw from the proceeding may be filed before the decision in rendered. However, once a written reply has been submitted by the opposite party (defendant), his/her consent shall be obtained to withdraw such petition acording to Article 161(1) of the Patent Act.
- Who and where should I contact if I have any inquiries regarding the pending case?
For any inquiries regarding the procedural matters of a case, such as submission of a written document and evidence, etc., please contact KIPO's call center at 1544-8080 (currently only available in Korean).
However, it is prescribed in Article 217 of the Patent Act that no expert opinion, testimony, or answer may be given in response to an inquiry about a case for which a patent application, examination, trial, or retrial is pending with the IPTAB, or an inquiry about a decision or trial ruling on whether to grant or refuse a patent, or about the details of a decision.
- Last updated 13 August 2020
- International Cooperation Division(Trial Policy Division)