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[Paskran]

I have filed a patent application in USA and my lawyer is currently working on preliminary amendment of the application.
Once the amendment is complete, I am going to file for PCT.
Meanwhile, I found a business partner in Korea who is interested in handling my product.
The issue is, however, that she feels uncomfortable with progressing the contract without patent application filed to Korean Patent Office.

My questions is,
1. Can I file patent application in Korea before PCT filing?
     If yes, what happens if I file for PCT after filing application in Korea?
2. Should the application for national phase be exact translate of original application?
     In another words, since preliminary amendment is in progress, the application is not finalized.
     Can I have a Korean patent lawyer develop the application for Korean Patent Office on his own based on the invention description?
     Or, should I wait until amendment is complete and translate the amended application?
3. I believe I can sue the companies who use my invention without my consent retroactively once the patent is issued. Is this rule applicable only in USA or internationally?

I would appreciate you help!

[bartmans]

Can I file patent application in Korea before PCT filing

Yes, you can either file a Korean national application or a PCT application designating Korea as long as it is within one year and one day of your US application. If you file both, in first instance no problems arise. These only arise if you file a national Koran application from your PCT application. It will depend on Korean national law if both applications (and patents eventually) can co-exist, or if one will replce the other.

Should the application for national phase be exact translate of original application

Yes. Best is of course to wait until your PCT draft is ready (and then file PCT). You may already file in Korea by using (the translation of) your original US application. If that would be useful depends on the answer to the previous question.

Is this rule applicable only in USA or internationally?

Generally, you can bring someone to court who infringes your granted patent without your consent. It depends on the national law if damages can be awarded if someone does not know of the existence of your patent right: in many countries you should inform the infringer first before damages can be awarded. An injunction will generally be possible without prior information.
Again, please refer to the national law for more details; in all countries there are differences how to proceed.

[Paskran]

Can I file patent application in Korea before PCT filing

Yes, you can either file a Korean national application or a PCT application designating Korea as long as it is within one year and one day of your US application. If you file both, in first instance no problems arise. These only arise if you file a national Koran application from your PCT application.

Can you tell me what would be my motive to file a national Korean application from PCT if I have already filed a Korean national application, not from PCT?

[bartmans]

Can you tell me what would be my motive to file a national Korean application from PCT if I have already filed a Korean national application, not from PCT?

If it is the same text and has the same filing date, then there would be no motivation. If you file a Korean application now (based on the text of your priority application) and file a PCT application with a new, amended specification, you might have a motive.
Not only for the updated text, but also because the 20-year patent term starts running from the Korean filing date, which is either the actual date of filing for your Korean application or, if you have gone via the PCT route, the PCT filing date.
In some areas (like pharmaceuticals) having a few weeks extra at the end of the patent term can make a difference of several millions.

Regards

[Paskran]

Thank you for your help, bartmans!