Whether an appeal filed by the Korean Intellectual Property Office with respect to a patent can be filed with the High Court for revocation or invalidation confirmation as an administrative litigation (negative)

According to Article 186(1) of the former Patent Act (amended by Act No. 4892 of Jan. 5, 1995), Articles 2 and 8 of the Administrative Litigation Act, and Article 3(1) of the Administrative Appeals Act, with respect to the appeal by the Korean Intellectual Property Office, the propriety of the appeal by the Supreme Court can be contested by the appeal procedure by the Supreme Court. Thus, regardless of whether the defects in the appeal trial fall under the grounds for revocation in accordance with the legal principles of the Administrative Act or fall under the grounds for revocation in a legal principle of the Administrative Act, it is not possible to seek the revocation or invalidity of the appeal by an administrative litigation immediately to the High Court without following the above provisions of the Patent Act, and therefore, the administrative litigation against

Article 186(1) of the former Patent Act (amended by Act No. 4892 of Jan. 5, 1995); Articles 2 and 8 of the Administrative Litigation Act; Article 3(1) of the Administrative Appeals Act

[Plaintiff-Appellee] 4294 Haeng8 decided March 15, 1962 (No. 10-1, 129) Supreme Court Decision 94Nu7010 decided May 26, 1995 (Gong1995Ha, 2280)

Plaintiff

The Commissioner of the Korean Intellectual Property Office

Seoul High Court Decision 95Gu30392 delivered on November 17, 1995

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

The grounds of appeal are also examined.

According to Article 186(1) of the Patent Act, Articles 2 and 8 of the Administrative Litigation Act, and Article 3(1) of the Administrative Appeals Act, with respect to the appeal by the Korean Intellectual Property Office, the validity of the appeal by the Supreme Court can be settled through the appeal procedure by the Supreme Court. Thus, despite whether the defects in the appeal by the Korean Intellectual Property Office fall under the grounds for revocation in accordance with the legal principles of the Administrative Law or whether the defects fall under the grounds for revocation in the appeal by reason of the legal principles of the Administrative Law, the appeal by the Korean Intellectual Property Office cannot immediately be sought for revocation or invalidity confirmation by an administrative litigation without complying with the above provisions of the Patent Act. Thus, the administrative litigation by the case subject to the appeal by the Korean Intellectual Property Office is unlawful (see Supreme Court Order 4294Nu7010, May 26, 1995).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as alleged in the grounds for appeal.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)