Does Korea require a foreign filing license?

Sangwook Je, Partner · Published 3 November 2026

Last verified 9 October 2026

The cases at a glance

As of October 2026.

The same provisions apply mutatis mutandis to utility model applications (Utility Model Act (실용신안법), Art. 11; Enforcement Decree of the Utility Model Act, Art. 9(1)). [17]

Korea has no general foreign filing license requirement

Article 41 is the only provision of the Korean Patent Act that restricts foreign filing. [1] Under Article 41(1), the Government can prohibit filing a patent application in a foreign country or order that an invention be kept confidential “if necessary for national defense”. [1] Under the proviso of the same paragraph, a foreign application can be filed with the permission of the Government. [1]

The Patent Act has no provision that restricts foreign filing based on the place where the invention was made. [1] It also has no provision that requires a first filing in Korea. [1] An invention that is not related to national defense can therefore be filed abroad without permission under the Patent Act. This is the same before and after a Korean application is filed.

WIPO gives the same information. WIPO describes the restriction in Korea as covering “Applications by residents”. [12] The restriction applies to applications that may be of interest for national defense, and the basis is Article 41 of the Patent Act. [12]

When an application is filed abroad first and in Korea later, the priority period must be observed. A priority claim under the Treaty can be made only if the Korean application is filed within 1 year from the filing date of the first application (Patent Act, Art. 54(2)). [1]

Permission is required for an invention under a confidentiality request or a confidentiality order

Article 15(1) of the Enforcement Decree of the Patent Act defines when permission is required. It covers an invention in a patent application filed by a person with a domicile or place of business in Korea, where the invention has received a confidentiality request or a confidentiality order. [2] In this case, a foreign application can be filed only with permission from the Minister of Intellectual Property. [2]

The procedure starts from a Korean application. If a patent application filed by a person with a domicile or place of business in Korea meets the classification criteria, the Minister of Intellectual Property sends an inquiry to DAPA (Enforcement Decree, Art. 12(1)). [2] When the inquiry is sent, the inventor, the applicant and the agent are notified of the inquiry and are requested to maintain confidentiality (Art. 12(2)). [2] A person who is found to know the invention is also notified. [2]

DAPA replies within 2 months from receiving the inquiry (Art. 12(3)). [2] If DAPA requests that the invention be kept confidential, the Minister of Intellectual Property issues a confidentiality order. [2] If there is no such request, the Minister gives notice lifting the confidentiality request (Art. 12(4)). [2]

An application that has received a notice lifting the confidentiality request is not subject to the prohibition against filing a patent application in a foreign country. The Patent Examination Guidelines (특허·실용신안 심사기준) describe the prohibition as covering applications that need to be managed as confidential as a result of consultation with DAPA. [14] The guidelines also state that an application with no request for confidential treatment proceeds in the same way as an ordinary application. [14]

This procedure does not start for an invention that has not been filed in Korea. Articles 12 and 15 of the Enforcement Decree are both written on the premise of a “patent application”. [2] The examination guidelines also explain Article 41 of the Patent Act as a provision that restricts an invention for which a patent application has been filed. [14]

The inquiry depends on the patent classification and on the applicant’s indication

The applications sent for inquiry are defined by an MOIP directive, the Classification Criteria of Patent Application Related to National Defense (국방관련 특허출원의 분류기준). There are two groups. [4]

The first group is applications classified under the International Patent Classification (IPC) or Cooperative Patent Classification (CPC) symbols listed in the attached Table. [4] The attached Table lists certain groups of B63G, B64D, C06B, C06C and C06D. [4] It also lists certain groups of F41A, F41C, F41F, F41G, F41H, F42B and F42C. [4]

The second group is applications filed under the procedure of Article 14 of the Handling Rules of Application-related Work (출원관계사무취급규정). [4] These are applications that the applicant considers national defense-related and files on paper or on an electronic recording medium. [16] The examination guidelines state that most national defense-related applications fall in this group. [14]

An application in a listed classification is still excluded from the inquiry in three cases. [4] One is where the application was not filed by a person with a domicile or place of business in Korea. [4] Another is where the invention is not a major defense material (주요방산물자) or a weapon system. [4] The third is where the invention is found unable to be a defense secret. [4]

The test is the applicant, not the place where the invention was made. The Enforcement Decree and the Classification Criteria both refer to applications by “a person with a domicile or place of business in Korea”. [2][4]

Permission is requested on Form 21, and only US filing is currently allowed

Permission for foreign filing is requested on Form 21 of the Enforcement Rules of the Patent Act (특허법 시행규칙), the “Request for Permission of Overseas Application Filing” (Enforcement Rules, Art. 35). [3] The request states the Korean application number, the country where filing is intended and the intended time of filing. [3] The Minister of Intellectual Property consults DAPA before granting permission (Enforcement Decree, Art. 16, subparagraph 2). [2]

The United States is currently the only country where an application can be filed with permission. The examination guidelines state that Korea has concluded an agreement with the United States on the confidentiality of national defense-related inventions. [14] They state that filing is not possible in any country other than the United States (Examination Guidelines, Part 7, Chapter 3, 7.2). [14]

A separate public notice (Notification) sets the procedure for filing an application classified as confidential in the United States. Permission from the Minister of Intellectual Property is required, and an agent with a security clearance from the US Government must be appointed. [5] Two conditions are attached to the permission. [5] One is that the specification describes the invention fully and clearly enough for the US Government to evaluate it. [5] The other is a waiver of any claim for compensation for damage caused by confidential treatment in the United States. [5]

For an application under a confidentiality order, laying-open of the application is withheld until the order is lifted (Patent Act, Art. 64(3)). [1] The Minister of Intellectual Property consults DAPA at least twice a year on whether to lift the order (Enforcement Decree, Art. 13(1)). [2] An inventor or applicant who has received a confidentiality order can request that it be lifted (Art. 13(2)). [2]

The Government compensates for losses caused by the prohibition against filing a patent application in a foreign country or by confidential treatment (Patent Act, Art. 41(3)). [1] The applicant can claim the compensation from DAPA (Enforcement Decree, Art. 14(1)). [2]

A PCT international application that meets the classification criteria is also put on hold

The classification criteria also apply to a PCT international application filed with MOIP. Article 108 of the Administrative Instructions of the Security Operational Rule of the Ministry of Intellectual Property (지식재산처 보안업무규정 시행세칙) sets the procedure. [15]

If an international application meets the classification criteria, MOIP withholds transmittal of the record copy and the search copy. [15] These copies go to the International Bureau and the International Searching Authority. [15] When a notice lifting the confidentiality request or a notice of release from confidentiality is given, the international application procedure continues (Art. 108(2)). [15]

A violation costs the right and, since 22 July 2025, is also a criminal offense

If the prohibition against filing a patent application in a foreign country or a confidentiality order is violated, the right to obtain a patent for that invention is deemed abandoned (Patent Act, Art. 41(5)). [1] The right to claim compensation for losses is also deemed abandoned (Art. 41(6)). [1]

The criminal penalty was introduced on 22 July 2025. Under Article 229-3 of the Patent Act, a person who commits a violation is punished by imprisonment for up to 5 years or a fine of up to KRW 50 million. [1] This article was added by Act No. 20700, promulgated on 21 January 2025, and took effect 6 months after promulgation. [1] The Addenda contain no applicability provision or transitional measure for this article. [1]

A corporation can also be punished. This applies when a representative of the corporation, or an agent, employee or other servant of the corporation, commits the violation in connection with the business of the corporation. [1] The corporation is then fined up to KRW 100 million (Patent Act, Art. 230, subparagraph 3). [1] This does not apply where the corporation was not negligent in giving due care and supervision. [1]

The Patent Act before that date had no penalty provision for this violation. The Patent Act in force from 21 August 2024 does not contain Article 229-3. [1]

The Utility Model Act has the same penalties. Article 49-3 and Article 50, subparagraph 3 of the Utility Model Act set the same imprisonment and fines. [17]

Technology export controls exclude the minimum technology needed for a patent application

Korea has technology export controls that are separate from the Patent Act. Both controls below exclude the minimum technology needed for a patent application.

The export of a national core technology (국가핵심기술) is governed by Article 11 of the Act on Prevention of Divulgence and Protection of Industrial Technology (산업기술의 유출방지 및 보호에 관한 법률). [6] Export of a national core technology developed with government research and development funding requires approval from the Minister of Trade, Industry and Resources (산업통상부장관). [6] For other national core technologies, a report must be filed in advance. [6] Article 25, subparagraph 3 of the Industrial Technology Protection Guidelines (산업기술보호지침) excludes the provision of the minimum technology needed for a foreign patent application from approval and reporting. [7] The application specification, supplementary materials and written arguments in response to grounds for rejection are given as examples. [7]

A transfer abroad of technology designated as a strategic item requires an export license (Foreign Trade Act (대외무역법), Art. 19-2). [8] Article 32-2, subparagraph 3 of the Enforcement Decree of the Foreign Trade Act excludes “minimum-level technology required for patent application” from the restricted technology. [8] Article 4(1), subparagraph 3 of the Public Notice on the Export and Import of Strategic Items (전략물자수출입고시) describes the scope as the application specification, supplementary materials, written arguments and the like. [9]

What is excluded is the minimum technology needed for filing and registration. An assignment of a patent right is different. Assigning a patent right that is a national core technology, so that actual exclusive control passes to the assignee, is an export (Industrial Technology Protection Guidelines, Art. 17, subparagraph 6). [7] It requires approval if the technology received government research and development funding, and a report for other technologies (Arts. 17 and 21 of the same guidelines). [7]

The export of defense technology follows Article 57 of the Defense Acquisition Program Act (방위사업법) and Article 19 of the Foreign Trade Act (Defense Technology Security Act (방위산업기술 보호법), Art. 9(2)). [13]

How Korea differs

The United States and China apply their rules to all technical fields, based on the place where the invention was made. Korea applies its rule only to defense-related Korean applications.

The US rules are 35 U.S.C. 184 and 185 and 37 CFR 5.11. [10] The Chinese rule is Article 19 of the Patent Law as amended on 17 October 2020. [11]

For an invention made in the United States or China, the rules of that country must be checked first. [10][11] The Korean Patent Act has no permission requirement based on the place of invention. [1]

What applicants should do

• In general, we consider that the country of first filing for an invention made in Korea can be chosen on business and cost grounds. Outside defense-related fields, no permission issue arises under the Korean Patent Act.
• If the invention relates to a weapon system or a major defense material, we suggest first checking whether it falls under the IPC or CPC symbols of the classification criteria. The time to check is before the filing route is decided.
• If a notice of a confidentiality request arrives after a Korean application is filed, we suggest stopping foreign filing and waiting for the result of the reply. The reply from DAPA can take up to 2 months. It is better to plan the schedule by deducting this period from the 1-year priority period.
• If a confidentiality order is issued, we suggest replanning on the premise that filing is not possible in any country other than the United States. A US filing requires permission and an agent with a security clearance.
• For an invention that is a national core technology or technology designated as a strategic item, we suggest a separate check before materials outside the specification are sent abroad. The point to check is whether export approval, a report or an export license is required.
• For an invention made in the United States or China, we suggest first checking the license or confidentiality examination of that country. Please confirm individual cases with an agent in each country.

FAQ

Does Korea have a system like the US foreign filing license?

Not one that applies to all inventions. Permission from the Minister of Intellectual Property is required only when a defense-related Korean application has received a confidentiality request or a confidentiality order. [1][2]

Can an invention made at the Korean research center of a foreign company be filed abroad first in the name of the head office?

The Korean Patent Act has no provision that restricts foreign filing based on the place where the invention was made. [1] The permission requirement in the Enforcement Decree covers a patent application filed in Korea by a person with a domicile or place of business in Korea. [2]

What happens if a foreign application is filed without permission?

If the prohibition or the order is violated, the right to obtain a patent for that invention is deemed abandoned. [1] Since 22 July 2025, the violation is punished by imprisonment for up to 5 years or a fine of up to KRW 50 million, and a corporation is fined up to KRW 100 million. [1]

Can an application under a confidentiality order be filed in Europe or Japan?

The examination guidelines state that filing is currently not possible in any country other than the United States. [14] A US filing requires permission from the Minister of Intellectual Property. [5]

Is there also a restriction on PCT international applications?

If an international application filed with MOIP meets the classification criteria, transmittal of the record copy and the search copy is withheld. [15] When a notice lifting the confidentiality request or a notice of release from confidentiality is issued, the international application procedure continues. [15] WIPO also lists Korea as a country with a national security restriction on applications by residents. [12]

Does a foreign patent application for a national core technology require export approval?

The provision of the minimum technology needed for filing and registration is excluded from approval and reporting. [7] Article 25, subparagraph 3 of the Industrial Technology Protection Guidelines gives the application specification and supplementary materials for a foreign patent application as examples. [7]

How DEFINE IP Law Firm handles this

DEFINE IP Law Firm checks this issue at the stage when the foreign filing route is decided. We look at two points together: whether the invention falls under the Korean classification criteria for defense-related applications, and the license requirement of the country where the invention was completed. For questions about the order of foreign filing for inventions made in Korea, please write to contact@defineip.kr.

Sources

1. Patent Act (특허법), Act No. 21134, in force from 2025-11-11. Articles 41, 54, 64, 229-3 and 230, Addenda (Act No. 20700, promulgated 2025-01-21, in force from 2025-07-22), compared with the version in force from 2024-08-21 (Act No. 20322). https://www.law.go.kr/법령/특허법 (verified 2026-10-09)
2. Enforcement Decree of the Patent Act (특허법 시행령), Presidential Decree No. 35809, in force from 2025-10-01. Articles 11 to 16. https://www.law.go.kr/법령/특허법시행령 (verified 2026-10-09)
3. Enforcement Rules of the Patent Act (특허법 시행규칙), Prime Ministerial Decree No. 2115, in force from 2026-05-14. Article 35, Form 21. https://www.law.go.kr/법령/특허법시행규칙 (verified 2026-10-09)
4. Ministry of Intellectual Property (지식재산처), Classification Criteria of Patent Application Related to National Defense (국방관련 특허출원의 분류기준), MOIP Directive No. 2, in force from 2025-10-30. https://www.law.go.kr/행정규칙/국방관련특허출원의분류기준 (verified 2026-10-09)
5. Ministry of Intellectual Property (지식재산처), Administrative Instructions of the Agreement of Confidentiality on National Defense-related Patented Inventions with the United States of America and the implementation procedure of the agreement (대한민국정부와 미합중국 정부간의 특허출원된 국방관련 발명의 비밀보호에 관한 협정 및 동 시행절차의 세부시행요령), MOIP Notification No. 2025-4, in force from 2025-10-30. Articles 3, 4 and 6. https://www.law.go.kr/행정규칙/대한민국정부와미합중국정부간의특허출원된국방관련발명의비밀보호에관한협정및동시행절차의세부시행요령 (verified 2026-10-09)
6. Act on Prevention of Divulgence and Protection of Industrial Technology (산업기술의 유출방지 및 보호에 관한 법률), Act No. 21154, in force from 2026-06-03. Article 11. https://www.law.go.kr/법령/산업기술의유출방지및보호에관한법률 (verified 2026-10-09)
7. Ministry of Trade, Industry and Resources (산업통상부), Industrial Technology Protection Guidelines (산업기술보호지침), Public Notice No. 2026-76, in force from 2026-06-30. Articles 17, 21 and 25. https://www.law.go.kr/행정규칙/산업기술보호지침 (verified 2026-10-09)
8. Foreign Trade Act (대외무역법), Act No. 21065, in force from 2026-01-02, Articles 19 and 19-2; Enforcement Decree of the Foreign Trade Act (대외무역법 시행령), Presidential Decree No. 36728, in force from 2026-10-02, Article 32-2. https://www.law.go.kr/법령/대외무역법 (verified 2026-10-09)
9. Ministry of Trade, Industry and Resources (산업통상부), Public Notice on the Export and Import of Strategic Items (전략물자수출입고시), Public Notice No. 2026-101, in force from 2026-09-01. Article 4. https://www.law.go.kr/행정규칙/전략물자수출입고시 (verified 2026-10-09)
10. USPTO, MPEP 140 Foreign Filing Licenses [R-07.2022] (containing 35 U.S.C. 184 and 185 and 37 CFR 5.11), page last modified 2026-03-09. https://www.uspto.gov/web/offices/pac/mpep/s140.html (verified 2026-10-09)
11. CNIPA, Patent Law of the People’s Republic of China (Translation for Reference Only), as amended on 2020-10-17, page updated 2022-10-13. Article 19. https://english.cnipa.gov.cn/art/2022/10/13/art_3068_179273.html (verified 2026-10-09)
12. WIPO, International applications and national security considerations, no update date shown. https://www.wipo.int/pct/en/texts/nat_sec.html (verified 2026-10-09)
13. Defense Technology Security Act (방위산업기술 보호법), Act No. 21431, in force from 2026-09-11. Article 9. https://www.law.go.kr/법령/방위산업기술보호법 (verified 2026-10-09)
14. Ministry of Intellectual Property (지식재산처), Patent Examination Guidelines (특허·실용신안 심사기준), MOIP Established Rule No. 7, in force from 2026-03-13. Part 7, Chapter 3, Examination on National Defense-related Application. https://www.law.go.kr/행정규칙/특허·실용신안심사기준 (verified 2026-10-09)
15. Ministry of Intellectual Property (지식재산처), Administrative Instructions of the Security Operational Rule of the Ministry of Intellectual Property (지식재산처 보안업무규정 시행세칙), MOIP Directive No. 2, in force from 2025-10-30. Articles 105 and 108. https://www.law.go.kr/행정규칙/지식재산처보안업무규정시행세칙 (verified 2026-10-09)
16. Ministry of Intellectual Property (지식재산처), Handling Rules of Application-related Work (출원관계사무취급규정), MOIP Directive No. 2, in force from 2025-10-30. Article 14. https://www.law.go.kr/행정규칙/출원관계사무취급규정 (verified 2026-10-09)
17. Utility Model Act (실용신안법), Act No. 21065, Articles 11, 49-3 and 50; Enforcement Decree of the Utility Model Act (실용신안법 시행령), Presidential Decree No. 35809, Article 9. Both in force from 2025-10-01. https://www.law.go.kr/법령/실용신안법 (verified 2026-10-09)