존속기간연장무효(특)심결취소의소
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the grounds of appeal Nos. 1 through 4
(a) To implement an invention of a medicine, etc., permission, etc. should be obtained in accordance with the Pharmaceutical Affairs Act, etc. in order to promote the public health and sanitation of the people and to ensure safety and effectiveness of the invention, and the patentee would be at a disadvantage that the patented invention
Therefore, Article 89 of the former Patent Act (amended by Act No. 1117, Dec. 2, 201; hereinafter the same) provides that “In cases of an invention prescribed by Presidential Decree, which requires a long period of time due to activity, safety tests, etc. necessary for executing a patented invention (hereinafter “permission, etc.”) in order to remedy such disadvantage and protect and encourage the invention of a medicine, etc., the term of the relevant patent may be extended by up to five years for the period during which the invention could not be worked, notwithstanding Article 88(1) of the former Patent Act.”
However, Article 91(2) of the former Patent Act provides to the effect that “the period required for a cause attributable to a patentee shall not be included in the period during which the patented invention could not be worked.” As such, where the procedure for permission, etc. is delayed due to a cause attributable to a person who obtained permission, etc., the period during which such cause is recognized shall not be included
On the other hand, permission for the registration of patent term extension is required.