Why “B” does not always build on “A”

31 January 2022

Korean patent information

Why "B" does not always build on "A" - and what it means for you

Regularly monitoring new patent publications is essential if you want to stay up to date with new technical advances or keep an eye on your competitors' and business partners' operations. Prior art from Asia, however, poses various challenges - not only due to language barriers but also specific aspects of IP legislation in Asian countries. As this topic attracts a great deal of interest among users, in this article we will highlight a feature of the Korean IP system which is important to consider as part of your regular monitoring - the possibility that granted patents ("B1" documents) might be published without the application ("A" document) having been published first.

"A" is first and "B" is second. This is one of those unalienable, self-evident "eternal" truths that we learn from a young age and apply to innumerable situations. At first glance, it also holds true for the publication pattern of patent documents. The application is published first, usually with kind code "A", followed eventually by the granted right - the "B" or "B1" publication.

However, examples from Korea show that this order is not set in stone. According to a Korean Patent Office (KIPO) report on a patent law revision in 2016, a significant proportion of applications filed at KIPO resulted in a decision to grant even before the application had been laid open 18 months after filing/priority. The survey showed that this had been the case for almost 40% of Korean applications for which a decision to grant was taken in 2014. In most of these cases, the granted patent (B1) had been published even before the publication of the application ("A") was due. In other words, B came before A.

There are several reasons for this phenomenon. Firstly, the grant procedure in Korea is relatively short. According to KIPO's most recent annual report, it takes on average about 11 months from the examination request to the first office action - which is either a preliminary rejection or the decision to grant. Secondly, Korean patent legislation provides several options for expediting the examination procedure, all of which might also result in an early grant decision.

Why is this important for patent searchers?

When monitoring new Korean publications, make sure not to limit your search to publications of applications - "A" documents - only. Otherwise you would miss any documents that have been granted quickly and for which - consequently - only the "B1" publication is available.

And keep in mind that if the "B1" publication is the first publication, KIPO will not publish the "A" document at all. So the "B1" document would be the only publication for the patent in question. This is different from Japan since the Japan Patent Office still publishes the application - with kind code "A2" - even if the granted patent is published first.

 Asian Patent Keyvisual 1
 Asian Patent Keyvisual 2

Left: Example of a Korean document with a B1 publication only (no "A" publication mentioned under "Published as"). Right: Korean document with both publications (A and B1). (click to enlarge)

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