Can examination be deferred in Korea?

Sangwook Je, Partner · Published 4 November 2026

Last verified 9 October 2026

Two options and deferral of the decision at a glance

As of October 2026.

Deferred examination (심사유예) and deferral of the decision to grant or reject (특허여부결정 보류) are not in the Patent Act (특허법). They are in the Enforcement Rules of the Patent Act. The Patent Act itself has no article on deferred examination. [1][2]

The request for examination can be delayed for up to three years

Korea examines a patent application only when examination is requested (Patent Act, Art. 59(1)). [2] Any person can request examination within three years from the filing date (Art. 59(2)). [2]

There are two cases in which the applicant cannot request examination (proviso to Art. 59(2)). [2] The first is when the specification does not contain claims. The second is when the Korean translation of a patent application in a foreign language has not been filed. [2]

The three-year period applies to patent applications filed on or after 1 March 2017. The previous provision applies to applications filed before that date (Addenda to the Patent Act, Act No. 14035, Art. 19). [2] The Patent Examination Guidelines (특허·실용신안 심사기준) state the period as five years for applications filed on or before 28 February 2017. [5]

For a PCT national phase application, the three years are counted from the international filing date. The Patent Examination Guidelines state this on the basis of Article 199(1) of the Patent Act. [5]

For a PCT national phase application, the time from which examination can be requested is set separately (Patent Act, Art. 210). [2] The applicant can request examination only after filing the Korean translation and paying the official fee. The Korean translation requirement does not apply to an international patent application filed in Korean. [2] A person other than the applicant can request examination only after the period for submitting domestic documents has passed. [2]

A divisional application, a separational application (splitting-off), a converted application and an application filed by the legitimate right holder have one more period. Even after the three years, examination can be requested within 30 days from the date on which that application was filed (Patent Act, Art. 59(3)). [2]

If examination is not requested within the period for requesting it, the patent application is deemed withdrawn (Patent Act, Art. 59(5)). [2] A request for examination cannot be withdrawn (Art. 59(4)). [2]

A person other than the applicant can also request examination. The Minister of Intellectual Property then notifies the applicant of that fact (Patent Act, Art. 60(3)). [2] A plan to delay the request for examination can therefore be broken by a third party’s request.

Article 59 is the same in the amended Patent Act (Act No. 21955) that is scheduled to enter into force on 16 March 2027. [2]

After requesting examination, the applicant can file a deferral request

A request for deferred examination (심사유예신청, “deferral request” below) must be filed within nine months from the date of the request for examination (Enforcement Rules, Art. 40-3(1)). [1] The condition in the article is that the applicant has requested examination. [1] The article does not cover the case in which a person other than the applicant requested examination. [1]

The deferral request states the time at which the applicant wishes to be examined. The Enforcement Rules call this the requested deferred examination date (유예희망시점). [1] The requested deferred examination date has two conditions.

• It must be after 24 months from the date of the request for examination. [1]
• It must be within five years from the filing date. [1]

The requested deferred examination date is entered as a number of months, not as a date. The field in the form reads “( ) months from the time when 24 months have passed after the date of the request for examination” (Form 22-2). [7] An applicant who wants the time when 30 months have passed from the date of the request for examination enters 6 in the brackets. [7]

There are three ways to file the deferral request. [1]

If an agent takes the procedure, a document verifying the agency authority must be attached (Art. 40-3(4)). [1]

The Regulation on the Collection of Patent Fees, etc. (특허료 등의 징수규칙, “Fee Regulation”) has no official fee provision for a deferral request. The application-related official fees listed in Article 2(1) of the Fee Regulation do not include a fee for a deferral request. [3] Form 22-2 has no fee field. [7]

Article 40-3 of the Enforcement Rules does not separately define the “filing date” of a PCT national phase application or of a divisional application. [1] The filing date under the Patent Act therefore applies. The filing date of a PCT national phase application is the international filing date. Under Article 199(1) of the Patent Act, an international application is deemed a patent application filed on its international filing date. [2]

The filing date of a divisional application is the filing date of the original application (parent application). It is not the date on which the divisional application was filed. Under the main text of Article 52(2) of the Patent Act, a divisional application is deemed filed at the time when the original patent application was filed. [2] The proviso to that paragraph lists four subparagraphs under which a divisional application is deemed filed at the time when the divisional application was filed. They are the cases of applying Article 29(3) of the Patent Act or Article 4(4) of the Utility Model Act, and Articles 30(2), 54(3) and 55(2) of the Patent Act. [2] Deferred examination and official fees are not in those four subparagraphs. The Patent Examination Guidelines take the same approach. They state that, for a divisional application deemed filed on the filing date of the original application, the legal provisions are applied on the basis of the filing date of the original application. [5]

In some cases the examiner does not defer examination

Deferred examination is not settled by the deferral request alone. The wording of the Enforcement Rules is that the examiner “may defer” examination until the requested deferred examination date (Art. 40-3(3)). [1]

Examination is not deferred in the following cases (subparagraphs of Art. 40-3(3)). [1]

A deferral request filed in one of these cases is not treated as a lawful application document (Enforcement Rules, Art. 11(1), subparagraph 18). [1] The title of Article 11 is “Return of unlawful application documents, etc.” [1]

Since 11 July 2025, divisional applications are no longer among the applications for which examination is not deferred. The amendment that took effect on that date (Ordinance of the Ministry of Trade, Industry and Energy No. 609) deleted “divisional application” from subparagraph 1. [1] The Addenda to the amendment consist of one sentence, which states that the amendment enters into force on the date of promulgation. There is no applicability provision and no transitional measure. [1]

The two conditions for the requested deferred examination date also apply to a divisional application. The date must be after 24 months from the date of the request for examination and within five years from the filing date. [1] This filing date is the filing date of the original application (Patent Act, main text of Art. 52(2)). [2] If the date of the request for examination of the divisional application is the day on which three years from the filing date of the original application expire, or later, there is no range to choose from. The time after 24 months from the date of the request for examination falls beyond five years from the filing date of the original application.

The requested deferred examination date can be changed or the deferral request withdrawn

On 14 May 2026, the time limit for withdrawal and change was deleted from Article 40-3(2) of the Enforcement Rules (Prime Ministerial Decree No. 2115). [1] The statement of reasons for the amendment says that withdrawal or change is to be allowed “at any time”. [1] Withdrawal is made with Form 12 (written withdrawal), and a change is made with Form 9 (written amendment). [1]

One limit remains in the article. The requested deferred examination date cannot be changed to a date on or before the date on which the written amendment is filed (proviso to Art. 40-3(2)). [1]

Before that amendment, withdrawal or change was possible only within two months from the date on which the deferral request was filed. [1] The Addenda to the amendment consist of one sentence, which states that the amendment enters into force on the date of promulgation. There is no applicability provision and no transitional measure. [1]

The fee for request for examination can be deferred as well

If the deferral request is made together with the request for examination, the fee for request for examination can be paid later. The fee is due no later than two months before the time at which the applicant wishes to be examined (Fee Regulation, Art. 8(4)). [3]

This does not apply when the deferral request is filed separately after the request for examination. The wording of the Fee Regulation covers a deferral requested “together with the request for examination”. [3] In other cases, the fee for request for examination is due by the day after the receipt number is issued. [3]

To defer payment, the applicant marks “required” in the field “deferred payment of the fee for request for examination” in the form. [7] The instructions for the form give three notices. [7]

• Payment of the fee for request for examination cannot be deferred if an automatic fee payment number is entered.
• Only the payment is deferred. This does not mean that the written request for examination has been accepted.
• Until the fee for request for examination is paid, acceptance of some documents, such as a written amendment that increases the number of claims, may be delayed.

The amount payable is “the fee for request for examination at the time when examination was requested” (Fee Regulation, Art. 8(4)). [3]

The fee for request for examination depends on the filing date. For a patent application filed on or after 1 August 2023, it is KRW 166,000 plus KRW 51,000 per claim (Fee Regulation, Art. 2(1), subparagraph 7). [3] For a patent application filed before that date, it is the previous amount of KRW 143,000 plus KRW 44,000 per claim (Addenda to Ordinance of the Ministry of Trade, Industry and Energy No. 517, Art. 3(2)). [3]

For a divisional application, the filing date of the original application decides which amount applies. The date on which the divisional application was filed does not. This is because a divisional application is deemed filed at the time when the original patent application was filed (Patent Act, main text of Art. 52(2)). [2] If the filing date of the original application is before 1 August 2023, the previous amount applies even if the divisional application was filed after that date.

Examination does not start on the requested deferred examination date itself

For an application with a deferral request, the examination start limit is a further 12 months after the requested deferred examination date. This is set by Article 21-2 of the Regulations for the Handling of Patent and Utility Model Examination Affairs (특허·실용신안 심사사무취급규정, “Examination Affairs Regulations”). [4]

The exact rule is as follows. Take the later of the requested deferred examination date and the date on which the application documents were transferred, and find the day that falls 12 months after it. Examination must start by the last day of the month that contains that day. [4][5]

These regulations are a Directive of the Ministry of Intellectual Property (지식재산처, MOIP): MOIP Directive No. 41, in force from 1 July 2026. The title of the article is “Processing period for applications with a deferral request”, and the article sets the time limit by which the examiner must start examination. [4]

The deferred period is excluded from patent term extension

The period for which the examiner deferred examination at the applicant’s request is a “period of delay attributable to the applicant” (Enforcement Rules, Art. 54-5, subparagraph 6). [1] This period is used when calculating the patent term extension for delay in registration (extension of the term of a patent right following delayed registration).

The excluded period runs from the date of the deferral request to the requested deferred examination date. If the requested deferred examination date was changed, it runs to the changed date. [1] If the deferral request was withdrawn, it runs from the date of the deferral request to the date of withdrawal. [1]

Patent term extension for delay in registration applies when registration is later than the later of four years from the filing date and three years from the date of the request for examination (Patent Act, Art. 92-2(1)). [2] Periods delayed due to the applicant are excluded from the extension (Art. 92-2(2); Enforcement Decree of the Patent Act, Art. 7-2(1), subparagraph 4). [2][6]

The filing date from which these four years are counted depends on the type of application (Patent Act, Art. 92-2(4)). [2] For a PCT national phase application, the four years are counted from the date on which the document under Article 203(1) of the Patent Act was submitted. For a divisional application, they are counted from the date on which the divisional application was filed. [2]

To delay a decision soon after filing, there is deferral of the decision

Deferral of the decision to grant or reject is a different system from deferred examination. Under it, the decision to grant or reject is deferred until 12 months have passed from the filing date (Enforcement Rules, Art. 40-2(1)). [1]

The applicant files the request for deferral of the decision after requesting examination and within six months from the filing date. [1] The form is Form 22-2, the same form as for a deferral request. [1][7]

The decision is not deferred in the following cases (subparagraphs of Art. 40-2(1)). [1]

• The patent application is a separational application or a converted application.
• A decision to grant accelerated examination has been made for the patent application.
• A written decision of rejection (decision to reject a patent application) or a written decision to grant was already notified before the request for deferral of the decision.

The period for which the decision was deferred is also a “period of delay attributable to the applicant” for patent term extension. It runs from the date on which the request for deferral of the decision was filed to the day that falls 12 months after the filing date (Enforcement Rules, Art. 54-5, subparagraph 5). [1]

Example: filing and request for examination on 10 June 2026

In this example, examination is requested together with the filing of the application. The written patent application also requests deferred examination and deferred payment of the fee for request for examination. The requested deferred examination date is assumed to be entered as “12 months from the time when 24 months have passed”.

The dates are calculated under Article 14 of the Patent Act. The first day of a period is not counted, and months and years are counted by the calendar. [2] The requested deferred examination date and the due date for the fee for request for examination are given as “around” a date. Neither the provisions nor the forms state how to count these two dates to the day. The examination start limit assumes that the application documents were transferred no later than the requested deferred examination date.

The later examination is requested, the narrower the range becomes. If examination is requested two years after the filing date, the requested deferred examination date must be after four years and within five years from the filing date. If examination is requested three years after the filing date, the time 24 months later is already the five-year point, so there is no range to choose from.

What applicants should do

• In general, if the reason for delaying examination is cost, we suggest first considering a late request for examination. No fee for request for examination arises before examination is requested.
• To prevent a third party’s request for examination from breaking the schedule, we suggest filing the deferral request together with the request for examination.
• If deferred examination is planned, we suggest not delaying the request for examination until close to three years from the filing date. The range for the requested deferred examination date becomes narrower.
• It is worth considering a requested deferred examination date that is earlier than the date actually wanted. The examination start limit stays open for up to 12 months after the requested deferred examination date.
• If patent term extension matters for the application, we suggest first confirming that the deferred period is excluded from the extension.
• Please confirm the time limits and requirements of an individual case with your agent.

FAQ

Is there an official fee for a deferral request?

The Fee Regulation has no official fee provision for a deferral request. The form for the deferral request has no fee field. [3][7]

Can a deferral request be filed for a divisional application?

Yes, since 11 July 2025. The amendment that took effect on that date removed divisional applications from the applications for which examination is not deferred. [1] The “five years from the filing date” for the requested deferred examination date are counted from the filing date of the original application (Patent Act, main text of Art. 52(2)). [2] A separational application, a converted application and an application filed by the legitimate right holder are still not eligible for deferral. [1]

What can the applicant do after changing its mind about a deferral request?

The applicant can withdraw the deferral request or change the requested deferred examination date. Since 14 May 2026 there is no time limit for this. [1] However, the requested deferred examination date cannot be changed to a date on or before the date on which the written amendment is filed. [1]

Can examination be stopped by withdrawing the request for examination itself?

No. Article 59(4) of the Patent Act provides that a request for examination cannot be withdrawn. [2]

Can a deferral request still be filed after a notice of grounds for rejection has been received?

No. A case in which a notice of grounds for rejection was already issued before the deferral request is one of the cases in which examination is not deferred (Enforcement Rules, Art. 40-3(3), subparagraph 3). [1]

How DEFINE IP Law Firm handles this

DEFINE IP Law Firm settles with the applicant, before the request for examination, when the application should be examined. If there is a reason to delay examination, we compare a late request for examination with a deferral request, together with their time limits. We also check at that point how the deferred period affects patent term extension. For questions about the timing of examination of Korean patent applications, please write to contact@defineip.kr.

Sources

1. Ministry of Intellectual Property (지식재산처), Enforcement Rules of the Patent Act (특허법 시행규칙), Prime Ministerial Decree No. 2115, in force from 14 May 2026. Articles 11, 37, 40-2, 40-3 and 54-5, Addenda, statement of reasons for the amendment. Earlier provisions: the version in force from 1 October 2025 (Prime Ministerial Decree No. 2054) and the version in force from 1 November 2024 (Ordinance of the Ministry of Trade, Industry and Energy No. 579). https://www.law.go.kr/법령/특허법시행규칙 (verified 2026-10-09)
2. Ministry of Intellectual Property (지식재산처), Patent Act (특허법), Act No. 21134, in force from 11 November 2025. Articles 14, 52, 59, 60, 92-2, 199, 203 and 210, Addenda to Act No. 14035, Art. 19. Version scheduled to enter into force: Act No. 21955 (in force from 16 March 2027). https://www.law.go.kr/법령/특허법 (verified 2026-10-09)
3. Ministry of Intellectual Property (지식재산처), Regulation on the Collection of Patent Fees, etc. (특허료 등의 징수규칙), Prime Ministerial Decree No. 2098, in force from 27 February 2026. Article 2(1), Article 8(4), Addenda to Ordinance of the Ministry of Trade, Industry and Energy No. 517, Art. 3(2). Previous amounts: the version in force from 4 February 2023 (Ordinance of the Ministry of Trade, Industry and Energy No. 499). https://www.law.go.kr/법령/특허료등의징수규칙 (verified 2026-10-09)
4. Ministry of Intellectual Property (지식재산처), Regulations for the Handling of Patent and Utility Model Examination Affairs (특허·실용신안 심사사무취급규정), MOIP Directive No. 41, in force from 1 July 2026. Articles 20 and 21-2. https://www.law.go.kr/행정규칙/특허·실용신안심사사무취급규정 (verified 2026-10-09)
5. Ministry of Intellectual Property (지식재산처), Patent Examination Guidelines (특허·실용신안 심사기준), MOIP Established Rule No. 7, in force from 13 March 2026. Part 5, Chapter 1, 5.1 Request for examination (pp. 5128 to 5129), 6. Start of examination (p. 5131), 8.(2) (p. 5134). https://www.law.go.kr/행정규칙/특허·실용신안심사기준 (verified 2026-10-09)
6. Ministry of Intellectual Property (지식재산처), Enforcement Decree of the Patent Act (특허법 시행령), Presidential Decree No. 35809, in force from 1 October 2025. Article 7-2(1), subparagraph 4. https://www.law.go.kr/법령/특허법시행령 (verified 2026-10-09)
7. Ministry of Intellectual Property (지식재산처), Enforcement Rules of the Patent Act (특허법 시행규칙), Form 14 (written patent application), Form 22 (written request for examination) and Form 22-2 (request for deferral of the decision / request for deferred examination), version in force from 14 May 2026. https://www.law.go.kr/법령/특허법시행규칙 (verified 2026-10-09)