Scope of application of Article 32(2) of the Patent Act (Article 28(2) of the former Patent Act)

Article 28 (2) of the former Patent Act, which provides for exemption from neglect, applies only to cases where a person filing a request for patent or any other procedure has failed to pay patent fees when he/she neglects a designated period or has failed to pay patent fees when he/she received registration for an act subsequent thereto, and where the Commissioner of the Korean Intellectual Property Office makes a request or any other procedure invalid except as otherwise provided for in the Patent Act, and where it is deemed that the patent is extinguished retroactively from the time when the due date for late payment of patent fees after patent registration expires, as provided for in Article 71 (3) of the same Act, if the patent is deemed extinguished retroactively to the time when the due date for late payment of patent fees after patent registration expires.

Articles 28, 71, 32, and 77 of the Patent Act

Supreme Court Decision 71Nu24 and 25 delivered on May 11, 1971 (Supreme Court Decision 9695Da 9695 delivered on May 19, 197, Supreme Court Decision 19Na21 delivered on February 1, 199, Patent Act Article 32(1)1 of Patent Act

Plaintiff 1 and 1 (Attorney Choi Jong-soo, Counsel for the plaintiff-appellant)

Director of the Patent Bureau

on January 26, 1971

The plaintiffs' claims are dismissed.

Litigation costs are assessed against the plaintiffs.

The plaintiffs shall revoke the disposition to invalidate the patent right made on February 19, 1970 by the defendant with respect to the patent rights under subparagraphs 174 and 175 of the Patent Act.

The costs of lawsuit are assessed against the defendant.

The non-party filed an application for a patent as to the manufacturing method with respect to "sat-satir possession satir" and "ben satrut" and obtained the patent, completed the registration on July 28, 1956, and the defendant revoked the patent on January 29, 1964 pursuant to Article 71 (3) of the Patent Act, and applied the non-party's non-party's non-party's non-party's non-performance of the patent right as of July 28, 1963, and applied the non-party's non-party's non-performance of the patent right as of August 12, 1964 and the non-party's non-party's non-performance of the patent right as of August 17, 196; the plaintiff 1 transferred the patent right as above to the non-party and then transferred the patent right to the plaintiff 2 as of July 14, 196 and then notified the plaintiff 1 as the non-party's non-party's non-performance of the patent right.

However, the plaintiffs asserted that the disposition to invalidate the above patent right is unlawful for the following reasons. In other words, Article 71(3) of the Patent Act provides that patent rights shall be deemed extinguished retroactively from the time when the period for payment of patent fees expires. However, Article 28(2) of the Patent Act provides that a patent right shall be deemed to be extinguished, which is a general provision on neglect of the period for payment of patent fees and non-payment of patent fees, and where a neglect of the period prescribed in Article 71(3) of the Patent Act is due to a cause not attributable to the parties, it shall be deemed that a exemption may be granted as a result of the non-payment of the period. Thus, the defendant's disposition of recovery as of

However, exemption from obligation under Article 28(2) of the same Act is applicable to cases where a person who filed an application, a request, or any other procedure neglects a designated period for subsequent acts, or fails to pay patent fees at the time of receipt of registration as stated in paragraph (1) of the same Article, and the patent postmaster becomes invalid except as otherwise provided in the Patent Act, and where the application, a request, or any other procedure is prescribed in Article 71(3) of the same Act, and where the patent right is deemed to be extinguished retroactively from the time when the payment period of patent fees expires due to the failure to pay patent fees within the delayed payment period after patent registration, and thus, such exemption from obligation under Article 28(2) of the same Act constitutes a defect in this case and thus, it is unreasonable for the above disposition to acknowledge that the above disposition becomes invalid due to a defect in the patent right's violation of the Act, and thus, the plaintiffs' assertion is groundless. Further, the plaintiffs' assertion that the above disposition becomes invalid after revocation of a new disposition on the ground that it is invalid after revocation of the patent right's.

However, since the defendant's restoration disposition has the same reasons as the plaintiffs' assertion after the above restoration disposition is rendered, the above plaintiffs' assertion is without merit since the above restoration disposition which is null and void is not recovered or effective.

Therefore, the plaintiffs' claims are without merit, and the costs of lawsuit are dismissed, and it is so decided as per Disposition by applying Article 14 of the Administrative Litigation Act, Articles 89 and 93 of the Civil Procedure Act, and Article 93.

Judges Sick-su (Presiding Judge)