Where the last day of the period for filing a lawsuit concerning a patent filed prior to the enforcement of the current patent law provision that includes Saturdays on a public holiday, the last day of the period for filing a lawsuit (=day)

Article 14 subparag. 4 of the Patent Act includes Saturdays in patent-related procedures on a legal holiday. However, with respect to a lawsuit concerning a patent filed under the previous provisions at the time the above Act enters into force, the previous provisions that do not include Saturdays on a legal holiday pursuant to Article 6 of the Addenda of the Patent Act ( March 3, 2006) are applied, so the lawsuit filed on the next Saturday, which is the last day of the filing period, is unlawful.

Article 14 subparag. 4 of the Patent Act; Article 14 subparag. 4 of the former Patent Act (Amended by Act No. 7871, Mar. 3, 2006); Articles 1 and 6 of the Addenda (Amended by Act No. 7871, Mar. 3, 2006); Article 14 subparag. 4 of the former Patent Act (Amended by Act No. 6411, Feb. 3, 2001)

Ethical Co., Ltd. (Patent Attorney Lee Jae-sung, Counsel for the defendant-appellant)

ELNS Co., Ltd. (Patent Attorney Full-time et al., Counsel for the defendant-appellant)

Patent Court Decision 2006Heo4987 Decided April 12, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Article 14 Subparag. 4 of the former Patent Act (wholly amended by Act No. 7871 of Mar. 3, 2006) provides that “if the last day of the period in the patent-related procedure falls on an official holiday (including the Workers’ Day under the Designation of Workers’ Day Act), the said period shall expire on the following day.” However, the said provision was amended by Act No. 7871 of Mar. 3, 2006, that “if the last day of the period falls on a holiday (including the Workers’ Day and Saturdays under the Designation of Workers’ Day Act), the said period shall expire on the following day.”

However, Article 1 of the Addenda to the amended Patent Act provides that "this Act shall enter into force on the date of its promulgation," and Article 6 of the Addenda provides that "The examination, patent registration, patent right, trial, review and lawsuit concerning patent application filed under the previous provisions at the time of its enforcement shall be governed by the previous provisions." Thus, with respect to a lawsuit concerning patent application filed before March 3, 2006, Article 14 subparagraph 4 of the amended Patent Act shall only apply to the previous provisions and shall not be deemed to apply.

The court below held that the defendant's patented invention (registration number: No. 341926) of this case was unlawful since the previous provision prior to the enforcement of the above amended Patent Act was applied to the lawsuit on December 27, 1997, which was before the enforcement of the above amended Patent Act. Therefore, in calculating the period for filing the lawsuit, since the Saturday cannot be deemed to be included on a legal holiday, the period for filing the lawsuit of this case is up to June 3, 2006 ( Saturdays) from May 4, 2006 to June 3, 2006, when the plaintiff received a certified copy of the trial decision, and it was just in the purport of the above determination that the lawsuit of this case filed on June 5, 2006 was unlawful. In so doing, it did not err by misapprehending the legal principles as to the transitional provisions of the amended Patent Act, contrary to what is alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)