2. The costs of lawsuit shall be borne by the Plaintiff.

[Evidence] Each entry of Gap evidence Nos. 1-1, 2, 2, and 3, and facts that are obvious to this court

A. Defendant’s patented invention

(a) Name: Method of dealing with, and apparatus for, a street paper for office automation equipment;

(2) Date of application / Date of registration / Number of registrations: December 17, 1997 / June 12, 2002 / No. 341926 of June 12, 2002

(3) The summary of the invention: The defendant's patented invention is related to the method of dealing with and processing of ground ways for office automation machinery and apparatus composed of claims 1 and 12 so that the defendant's patented invention can increase the processing speed of ground ways by treating a variety of ground ways in a lump sum, and in case of error in reading the data of ground ways, it can reduce the handling time of ground ways by taking away the data of ground ways (hereinafter "the patented invention of this case").

B. Plaintiff’s petition for registration invalidation trial, partial rejection of trial decision, and ground for appeal

(1) On September 14, 2005, the plaintiff asserted that the registration of the patented invention in this case should be invalidated since it can be easily derived from publicly known inventions, and filed a petition for a trial on invalidation of registration with the Intellectual Property Tribunal No. 2005Da2246.

(2) On April 28, 2006, the Korean Intellectual Property Trial and Appeal Board rendered a decision to partially dismiss the Plaintiff’s claim on the grounds that the nonobviousness of claims 3, 4, 6, 7, and 8, among the patented inventions in this case, can easily be derived from publicly known inventions, and thus, the nonobviousness of claims 1, 2, 5, 9, 10, 11, and 12 is recognized compared to publicly known inventions.

(3) On May 4, 2006, the Plaintiff served a certified copy of the trial decision, and filed the instant lawsuit seeking the revocation of the part of the above trial decision on June 5, 2006.

2. The parties' arguments and the issues of this case

A. Summary of the plaintiff's assertion

(1) Article 14(4) of the Patent Act regards Saturdays as a legal holiday in the patent-related procedure. Since the aforementioned provisions are general provisions concerning the calculation of the period under the Patent Act, it shall also be applied in calculating the period for filing a lawsuit against a trial decision. However, since the Plaintiff filed the instant lawsuit on June 5, 2006, which is the 30th day from the date when a certified copy of the trial decision was served (e.g., May 4, 2006), the Plaintiff’s lawsuit was filed on June 3, 2006, the next Saturday, and thus is lawful.

(2) The invention described in the Claim 1, 2, 5, 9, 10, 11, and 12 of the instant patent invention is non-obviousness as the invention can easily be derived from the publicly known art by a person with ordinary knowledge in the art to which the invention pertains, and thus, the registration should be invalidated.

B. Summary of the defendant's assertion

(1) Article 14(4) of the Patent Act considers a Saturday as a legal holiday in the patent-related procedure. However, “patent-related procedure” refers to “application, request, or any other procedure” as prescribed by Article 3(1) of the Patent Act, and is only the procedure performed inside the Korean Intellectual Property Office or the Korean Intellectual Property Tribunal, and does not constitute an action against a trial decision. Accordingly, the instant lawsuit is unlawful as it was instituted after the filing period expires.

(2) An invention described in Claim 1, 2, 5, 9, 10, 11, and 12 among the patented inventions of this case is recognized as non-obviousness since it does not begin with an invention whose core composition is publicly known.

C. Key issue of the instant case

The key issue of the instant case is (1) whether the period for filing the instant lawsuit complies with, and (2) whether the patent invention of the instant case is non-obviousness of claims 1, 2, 5, 9, 10, 11, and 12 among the patented inventions.

3. Whether the plaintiff's filing period is observed

A. Provisions of the Patent Act to be applied to the instant lawsuit

(1) According to Article 186(3) of the Patent Act, a lawsuit of dissatisfaction against a trial decision shall be brought within 30 days from the date of receipt of a certified copy of the trial decision.

(2) As to the calculation of the period, Article 14 of the Patent Act (amended by Act No. 7871 of March 3, 2006) currently in force provides for the following:

Article 14 (Calculation of Period) The calculation of a period under this Act or any order issued under this Act shall be based on the following subparagraphs:

1. The first day of the period shall not be counted unless the period starts at midnight;

2. (Omission)

3. (Omission)

4. If the last day of the period for executing a patent-related procedure falls on an official holiday (including the Workers' Day under the Designation of Workers' Day Act and Saturdays), the said period shall expire on the working day following such holiday.

As to the meaning of “patent-related procedure” under Article 14 Subparag. 4 above, Article 3 of the same Act provides for the following:

Article 3 (Legal Capacity of Minors) (1) No minor shall initiate any application, request or other procedure relating to a patent (hereinafter referred to as "patent-related procedure") (hereinafter referred to as "patent-related procedure").

According to the above provisions, Saturdays is deemed a legal holiday in patent-related procedures, and “patent-related procedures” refers to “application, request, and other procedures relating to patent.” Thus, if the last day of the period for filing an application, request, or other procedures relating to a patent falls under Saturday, the period is expired on the following Saturday. However, it may be problematic whether the filing of a lawsuit against a trial decision falls under “application, request, and other procedures relating to patent”.

However, prior to considering whether an action against the above trial decision constitutes a patent-related procedure, according to the main sentence of Article 6 of the Addenda of the Patent Act (Act No. 7871), the general transitional measures with respect to the enforcement of the above Act, which provide that “the lawsuit against a patent application filed under the previous provisions at the time of the enforcement of the above Act shall be governed by the previous provisions.” Thus, with respect to the instant lawsuit against a trial decision for invalidation of the patent of this case filed on December 17, 1997, the “previous provision” applicable at the time of the above application shall be applied.

Therefore, Article 14 subparag. 4 of the Patent Act (amended by Act No. 5080, Dec. 29, 1995; hereinafter “the Patent Act”), which applies at the time of filing an application for the instant patent invention, is defined as follows.

Article 14 (Calculation of Period) The calculation of a period under this Act or any order issued under this Act shall be based on the following subparagraphs:

1. Above 3. (Omission)

4. If the last day of the period falls on a holiday (including the Workers’ Day under the Designation of Workers’ Day Act), the period shall expire on the working day following such holiday.

Therefore, according to Article 14 subparag. 4 of the Patent Act when the filing period of the instant lawsuit is applied in calculating the filing period of the instant lawsuit, a Saturday is not included in a legal holiday regardless of whether the filing of a lawsuit against the instant trial decision constitutes a patent-related procedure.

B. Period for filing the suit of this case

Therefore, the period of filing the instant lawsuit is from May 4, 2006 to June 3, 2006, which falls under the 30th day below the calendar day from which the Plaintiff received a certified copy of the trial decision. Therefore, even if the Plaintiff had filed the instant lawsuit until the said date, the Plaintiff should have determined that the date falls under a legal holiday, and received the instant complaint on the 5th day of the same month, as seen earlier. Thus, the instant lawsuit was subject to the period of filing the lawsuit.

4. Conclusion

Thus, the lawsuit of this case is unlawful since it was filed after the lapse of the period for filing the lawsuit without examining the inventive step of the patented invention. It is so decided as per Disposition.

Judges Lee Tae-tae (Presiding Judge)