Can third parties submit prior art during Korean examination?

Sangwook Je, Partner · Published 6 November 2026

Last verified 9 October 2026

Provision of information at a glance

Korean law calls this system “provision of information” (정보제공). It corresponds to what is called a third-party observation or a third-party submission in English.

Any person can submit, together with evidence

Article 63-2 of the Patent Act states that “any person” can provide information. [1] The wording does not require an interest in the case. What must be submitted is information that the patent application falls under a ground for rejection and cannot be patented, together with evidence. [1]

An anonymous submission is possible. The submitter field of the information submission form is filled in when the submitter wants to be notified of how the information was used. It can be left out if the submitter wants to remain anonymous. [3] If the submitter field is left out, the agent field is also left blank. [3] The Examination Guidelines also state that documents submitted anonymously are not returned, are not made subject to invalidation of the procedure, and are taken into account in examination. [5]

A foreign company that provides information in its own name must act through a patent administrator (특허관리인) in Korea. Article 5(1) of the Patent Act provides that an overseas resident (재외자), a person with no domicile or place of business in Korea, can take a patent-related procedure only through a patent administrator. [1] The exception is where the overseas resident (for a legal entity, its representative) is staying in Korea. [1] The Examination Guidelines list the provision of information as one of the “patent-related procedures” that any person can take. [5] The Examination Guidelines state that documents for a procedure taken by an overseas resident without a patent administrator are returned after the overseas resident is given an opportunity to explain. [5] The general power of attorney form in the Enforcement Rules of the Patent Act (특허법 시행규칙) also lists “provision of information on another person’s patent application” as a delegated matter. [3]

Information can be submitted until registration, and the Act sets no time limit

Article 63-2 of the Patent Act contains no time limit. Its wording does not make the laying-open of the application or a request for examination a condition. [1] The Examination Guidelines explain that information can be submitted except where the application has been invalidated, withdrawn or abandoned, the decision of rejection has become final, or registration has taken place. [5]

Information can be submitted before the request for examination. The Examination Guidelines separately describe how a case is handled when examination is requested after information was provided. [5]

Information can be submitted during an appeal against the examiner’s decision to reject a patent application (trial on rulings rejecting patent applications). Article 170(1) of the Patent Act applies Article 63-2 mutatis mutandis to the appeal against the decision to reject and changes the addressee to the President of the Intellectual Property Trial and Appeal Board. [1] This mutatis mutandis application took effect on 1 January 2015. [1][2]

Information can be submitted after the decision to grant, if registration has not yet taken place. The Examination Guidelines state that in this case the examiner must check whether the evidence shows an obvious ground for rejection. [5] If the examiner finds an obvious ground for rejection, the examiner can revoke the decision to grant ex officio and examine the application again (Patent Act, Art. 66-3(1)). [1] Ex officio re-examination applies to applications for which the decision to grant is made on or after 1 March 2017 (Addenda to Act No. 14035, Art. 6). [1] Ex officio re-examination is not possible once registration has taken place or the application is withdrawn or abandoned. [1]

Grounds other than prior art can be raised, but three are excluded

The provision of information is not limited to prior art. It covers the grounds for rejection in general. The wording of Article 63-2 of the Patent Act is information that the application “falls under a ground for rejection and cannot be patented”. [1] The grounds for rejection are listed in the subparagraphs of Article 62 of the Patent Act. They include novelty and inventive step (Art. 29) and the earlier application rule (Art. 36(1) to (3)). The requirements for the description of the invention and for the claims (Art. 42(3) and (4)) are also grounds for rejection. [1]

The proviso to Article 63-2 excludes three requirements from the grounds for the provision of information. [1]

These three requirements are also excluded from ex officio re-examination (Patent Act, Art. 66-3(1), subparagraph 1). [1]

The evidence is attached to the information submission form

To provide information, the submitter files the information submission form (정보제출서, Form 23 of the Enforcement Rules) with one copy of the documentary evidence, such as printed publications (Enforcement Rules of the Patent Act, Art. 45). [3] If an agent takes the procedure, one copy of a document verifying the agency authority is also attached. [3] The information submission form can be filed online through PatentRo (특허로, http://www.patent.go.kr). [3]

In the “reasons for submission” field of the form, the submitter states specifically why, in light of the evidence, the claimed invention fails to meet a patentability requirement. [3] Documents submitted to the Minister of Intellectual Property must be written in Korean (Enforcement Rules, Art. 4(1)). [3] A Korean translation must be attached to documents written in a foreign language, such as a power of attorney or a certificate of nationality (Art. 4(2)). [3]

The examiner uses the evidence differently depending on its type. If the evidence is a printed publication or a copy of one, or a copy of a specification or drawings, the examiner looks at whether publication before the filing date is clear. If it is clear, the examiner can use the evidence as prior art without further examination of evidence. [5] Other documents are used as prior art only where the examiner can be convinced that the fact to be proved exists. [5] In that case, if the applicant denies the fact in a written argument, the examiner does not, as a rule, accept the fact. [5]

Patent-related official fees are set by Prime Ministerial Decree (Patent Act, Art. 82(3)). [1] That decree, the Regulation on the Collection of Patent Fees, etc. (특허료 등의 징수규칙), has no official fee item for the provision of information. [6]

The applicant is notified within 1 month, and the information provider is notified when examination ends

The examiner must notify the applicant of the provision of information within 1 month from the date on which the information submission form is transferred (Handling Regulations, Art. 83(1)). [4] This notification rule took effect on 1 November 2021. It applies to information provided on or after that date (Addenda to Directive No. 1050, Arts. 1 and 4). [4]

If the evidence is a patent gazette, utility model gazette or design gazette, identifying information such as the document number is included in the notice. The same applies to academic papers and technical standard documents (Art. 83(2)). [4] If information was provided before the request for examination, the notice is given within 1 month from the date on which the examiner in charge receives the file. [5]

A person who needs to inspect or copy documents relating to a patent application can apply for permission (Patent Act, Art. 216(1)). [1] Permission can be refused for the documents of an application that has neither been laid open nor been registered (Art. 216(2), subparagraph 1). [1] Article 6(1), subparagraph 5 of the Fee Regulation sets the fee for requesting copies of documents relating to the provision of information. Copies received online are free of charge, and copies received on paper cost KRW 100 per page. [6]

The examiner can use the submitted evidence in examination. [5] The wording of the Examination Guidelines is “can use”. It is not a rule that requires the examiner to base a ground for rejection on the submitted evidence.

When examination ends, the examiner must notify the information provider of the result and of whether the information was used (Handling Regulations, Art. 83(3)). Examination ends with a decision to register, a decision of rejection or another reason. [4] For information provided anonymously, no notice of whether the information was used is given. [4] The notice can also be omitted where the application is abandoned, withdrawn or invalidated before the start of examination. [5]

The provision of information can affect the examination schedule. The basis is Article 7(1), subparagraph 11 of the Handling Regulations. It covers the case where the information submission form is transferred to the examiner in charge within 30 days before the expiration date of the processing deadline and further review is needed. In that case, the examiner can suspend examination or extend the processing period, by up to 2 months. [4]

After registration, the route is a request for revocation of a granted patent, not the provision of information

A registered application is not open to the provision of information. [5] A registered patent is challenged by a request for revocation of a granted patent (특허취소신청) or a trial for invalidation. A trial for invalidation can be requested by an interested party or an examiner (Patent Act, Art. 133(1)). [1] A request for revocation of a granted patent can be filed by any person. The period runs from the date of registration of the grant of the patent to the day that is 6 months after the date of publication of registration (Patent Act, Art. 132-2(1)). [1] The grounds for a request for revocation of a granted patent are narrower than those for the provision of information. They are limited to violations of Article 29 (with some exclusions) and of Article 36(1) to (3) (subparagraphs of Art. 132-2(1)). [1] The request for revocation of a granted patent applies to patent rights registered on or after 1 March 2017 (Addenda to Act No. 14035, Art. 10). [1] The grounds and procedure of the request for revocation of a granted patent are covered in “What is the patent cancellation procedure in Korea, and what is its deadline?”.

How Korea differs

Korea sets no time limit in the Act, and the material that can be submitted is not limited to printed publications.

In the United States, a submission that does not meet the requirements of 37 CFR 1.290 may not be entered in the record or considered. The time limit is one of those requirements (37 CFR 1.290(a) and (b)). [7] In Korea, information can still be provided after the decision to grant, if registration has not yet taken place. [5]

The United States charges a fee of USD 195 for every 10 documents or fraction of 10. The fee is USD 78 for small entities and micro entities. A first submission of 3 or fewer documents is free of charge if the prescribed statement is filed (37 CFR 1.290(f) and (g), 1.17(o)). [7] The Korean Fee Regulation has no official fee item for the provision of information. [6]

In Europe, a third party who files observations is not a party to the proceedings (EPC, Art. 115). [8] In Europe as well, third-party observations are communicated to the applicant (EPC, Rule 114(2)). [8]

What applicants and third parties should do

• In general, we suggest that a company watching a competitor’s Korean application provide information before the decision to grant. After the decision to grant, the examiner checks only whether there is an “obvious ground for rejection”.
• We suggest choosing evidence mainly from printed publications whose publication before the filing date is clear. Other documents are used as prior art only when the examiner is convinced that the fact exists.
• In the reasons for submission, it is advisable to state which part of the evidence corresponds to which element of which claim. The form requires the reasons to be stated specifically.
• An information provider who wants to know the examination result and whether the information was used should submit under its real name. No notice of use is given for an anonymous submission.
• We suggest that an applicant who receives a notice of the provision of information check the submitted evidence and review possible amendments in advance, in preparation for a notice of grounds for rejection.
• For an individual case, please confirm with a Korean agent which route to use: the provision of information, a request for revocation of a granted patent or a trial for invalidation.

FAQ

Is an interest in the case required to provide information in Korea?

No. Article 63-2 of the Patent Act provides that “any person” can provide information. [1]

Can a foreign company submit directly, without a Korean agent?

An overseas resident can take a patent-related procedure only through a patent administrator (Patent Act, Art. 5(1)). [1] The Examination Guidelines list the provision of information as one of the patent-related procedures. [5]

Can information be submitted before the application is laid open?

The wording of Article 63-2 of the Patent Act does not make the laying-open of the application a condition. [1] The exclusions listed in the Examination Guidelines are invalidation, withdrawal or abandonment of the application, a final decision of rejection, and registration. [5]

Does the applicant learn that information was provided?

Yes. The examiner must notify the applicant within 1 month from the date on which the information submission form is transferred. [4] The rule applies to information provided on or after 1 November 2021. [4]

If information is provided, must the examiner reject the application on that evidence?

No. The Examination Guidelines state that the examiner can use the submitted evidence in examination. [5] The information provider is notified of the result and of whether the information was used when examination ends. [4]

Can information be submitted for an application under an appeal against the decision to reject?

Yes. In that case it is submitted to the President of the Intellectual Property Trial and Appeal Board (Patent Act, Art. 170(1)). [1]

How DEFINE IP Law Firm handles this

When DEFINE IP Law Firm reviews a provision of information, we first check the examination stage of the target application. We check whether examination has been requested, whether a notice of grounds for rejection has been issued and whether a decision to grant has been issued. We choose evidence on the basis of whether its publication before the filing date is clear. For questions about the provision of information against Korean applications, please write to contact@defineip.kr.

Sources

1. Patent Act (특허법), Act No. 21134, in force from 11 November 2025. Articles 5, 42, 45, 62, 63-2, 66-3, 82, 132-2, 133, 170 and 216; Addenda to Act No. 12753 (in force from 1 January 2015), Art. 1; Addenda to Act No. 14035 (in force from 1 March 2017), Arts. 6 and 10. Compared with the same articles of the version scheduled to enter into force (Act No. 21955, in force from 16 March 2027). https://www.law.go.kr/법령/특허법 (verified 9 October 2026)
2. Patent Act (특허법), previous version, Act No. 11848, in force from 1 July 2014. Articles 63-2 and 170. https://www.law.go.kr/법령/특허법 (version history, verified 9 October 2026)
3. Enforcement Rules of the Patent Act (특허법 시행규칙), Prime Ministerial Decree No. 2115, in force from 14 May 2026. Articles 4 and 45, Form 3 and Form 23. https://www.law.go.kr/법령/특허법시행규칙 (verified 9 October 2026)
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 7 and 83; Addenda to Directive No. 1050 (23 June 2021), Arts. 1, 3 and 4. https://www.law.go.kr/행정규칙/특허·실용신안심사사무취급규정 (verified 9 October 2026)
5. Ministry of Intellectual Property (지식재산처), Patent Examination Guidelines (특허·실용신안 심사기준), MOIP Established Rule No. 7, in force from 13 March 2026. Part 1, Chapter 1, 3.2 and 5; Part 5, Chapter 3, 6.4 and 12.3; Part 7, Chapter 6, 4. https://www.law.go.kr/행정규칙/특허·실용신안심사기준 (verified 9 October 2026)
6. 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) and Article 6(1), subparagraph 5. https://www.law.go.kr/법령/특허료등의징수규칙 (verified 9 October 2026)
7. US Code of Federal Regulations, 37 CFR 1.290 and 1.17(o), eCFR as of 6 October 2026. https://www.ecfr.gov/current/title-37/section-1.290 (verified 9 October 2026)
8. EPO, European Patent Convention, Article 115, Rule 114. https://www.epo.org/en/legal/epc/2020/a115.html, https://www.epo.org/en/legal/epc/2020/r114.html (verified 9 October 2026)