Whether Article 32(2) of the Patent Act applies to cases under Article 77 of the Patent Act (negative)

Exemption of the result of the so-called neglect under Article 32 (2) of the Patent Act shall apply only where the Commissioner of the Korean Intellectual Property Office invalidated the application, request and other procedures, except as otherwise provided for in the Patent Act, when a person who has filed an application, request, or other procedures, neglects a designated period for subsequent acts, or fails to pay the patent fees when he received registration, as provided for in Article 32 (1) of the Patent Act, and where it is deemed that the patent right retroactively ceases to exist when the due date for the failure of the patentee to pay patent fees for the failure to pay patent fees for the failure of the due date for the late payment of patent fees as provided in Article 77 (3) of the Patent Act

Article 32(1) of the Patent Act; Article 32(2) of the Patent Act; Article 77(3) of the Patent Act

Supreme Court Decision 71Nu24, 25 delivered on May 11, 1971, 76Nu98 delivered on December 14, 1976

This month Skib B&D ZE Corstetrad (Ulleng Skid, Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Seoul High Court Decision 81Gu301 delivered on April 29, 1982

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal Nos. 1 and 2 are examined together (the supplementary statement to the grounds of appeal is submitted after the deadline for submitting the grounds of appeal. Therefore, the supplementary statement to the extent that it supplements the grounds of appeal)

The exemption of so-called neglect under Article 32 (2) of the Patent Act is applied only to cases where the Commissioner of the Korean Intellectual Property Office invalidated the application, a request, and other procedures, except as otherwise provided in the Patent Act, when a person who has filed an application, a request, or any other procedures neglects a designated period for subsequent acts or fails to pay patent fees when he/she received registration, as provided in Article 32 (1) of the Patent Act. In cases where it is deemed that a patent right is extinguished retroactively to the time when the payment period for patent fees expires because a patentee fails to pay patent fees during the delayed payment period of patent fees, as provided in Article 77 (3) of the Patent Act, the application is not applied (see, e.g., Supreme Court Decision 71Nu24 and 25, May 11, 1971; 76Nu98, Dec. 14, 1976). Such precedents cannot be viewed as the express provisions of the Patent Act and find reasons or practical needs to modify them.

Therefore, the court below's rejection of the plaintiff's assertion to this purport is just and it cannot be viewed that there was an error in the misapprehension of legal principles as to Articles 77, 32, and 33 of the Patent Act, and it is merely an independent opinion and it cannot be admitted.

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

Justices Lee Il-young (Presiding Justice)