Q. Does the KIPO (Korean Intellectual Property Office) accept a request for restoration of the priority right in an application for a Korean patent under Paris Convention and/or an entry into the Korean national phase of a PCT case? If the priority right of PCT application is restored during the international phase, does the time limit for entry into the Korean national phase change?

The Korean Intellectual Property Office (KIPO) does not accept a restoration of the priority right at the filing stage of a Korean patent application. The Korean Patent Act has no provisions for restoring a priority claim of which a priority deadline expired. The KIPO as designated office also does not accept a restoration of the priority right of PCT Rule 49ter.2 at the entry into the national phase, even though the priority right of PCT application is restored during the international phase under PCT Rule 26bis.3. Accordingly, the time limit of the entry into the Korean national phase is still thirty-one (31) months from the earliest priority date, which is written in the Request form PCT/RO/101, regardless of the restoration of the priority right of the international phase. That is, the time limit is not extended, even though the priority right of PCT application is restored during the international phase. For your information, please also note that the KIPO does not allow the entry into the national phase after the thirty-one months deadline has passed. PCT Rule 26bis.3 [Restoration of Right of Priority by Receiving Office] (a) Where the international application has an international filing date which is later than the date on which the priority period expired but within the period of two months from that date, the receiving Office shall, on the request of the applicant, and subject to paragraphs (b) to (g) of this Rule, restore the right of priority if the Office finds that a criterion applied by it (“criterion for restoration”) is satisfied, namely, that the failure to file the international application within the priority period: (i) occurred in spite of due care required by the circumstances having been taken; or (ii) was unintentional. Each receiving Office shall apply at least one of those criteria and may apply both of them. PCT Rule 49ter.2 [Restoration of Right of Priority by Designated Office] (a) Where the international application claims the priority of an earlier application and has an international filing date which is later than the date on which the priority period expired but within the period of two months from that date, the designated Office shall, on the request of the applicant in accordance with paragraph (b), restore the right of priority if the Office finds that a criterion applied by it (“criterion for restoration”) is satisfied, namely, that the failure to file the international application within the priority period: (i) occurred in spite of due care required by the circumstances having been taken; or (ii) was unintentional. Each designated Office shall apply at least one of those criteria and may apply both of them.

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