Whether Article 161 of the Civil Act, which is not Article 14 subparag. 4 of the former Patent Act, and Article 161 of the Civil Act, including the day of the worker’s filing of a lawsuit against a trial decision, applies to a utility model (affirmative)

Article 14 Subparag. 4 of the former Patent Act (amended by Act No. 7871 of Mar. 3, 2006; hereinafter the same) provides that “if the last day of the period for patent-related procedures 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.” According to Article 3(1) of the former Patent Act, the term “patent-related procedure” means an application, a request, and other procedures. Article 5(1) and (2) of the former Patent Act distinguish between the procedure for patent and the filing of a lawsuit against a disposition by an administrative agency under the Patent Act or an order under the Patent Act; Article 14 subparag. 4 of the former Patent Act (amended by Act No. 7871 of Mar. 3, 2006; Article 15 of the former Patent Act provides for the extension of the period for patent-related procedures; however, it does not include the procedure for a trial decision in light of the fact that the period for filing a lawsuit and the period for an additional action may be determined separately.

Therefore, Article 14 subparag. 4 of the former Patent Act does not apply to the calculation of the time limit for filing a lawsuit against a trial decision, and there is no provision separately in the Patent Act or the Administrative Litigation Act. Accordingly, Article 161 of the Civil Act shall apply pursuant to Article 170 of the Civil Procedure Act which is applicable mutatis mutandis pursuant to Article 8 of the Administrative Litigation Act, and Article 161 of the former Utility Model Act (wholly amended by Act No. 7872 of March 3, 2006) shall apply mutatis mutandis to utility models. Thus, the above legal principle shall also apply to utility models.

Articles 3(1), 5(1) and (2), 14 subparag. 4, 15, and 186 of the former Patent Act (amended by Act No. 7871 of March 3, 2006), Article 161 of the Civil Act, Article 170 of the Civil Procedure Act, Article 8 of the Administrative Litigation Act

Plaintiff (Patent Attorney Na-won et al., Counsel for the plaintiff-appellant)

C&D Co., Ltd. (Patent Attorney Lee Jong-soo et al., Counsel for the defendant-appellant)

Patent Court Decision 2013Heo3685 Decided June 7, 2013

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

The grounds of appeal are examined.

1. Article 14 Subparag. 4 of the former Patent Act (amended by Act No. 7871 of Mar. 3, 2006; hereinafter the same) provides that “if the last day of the period for patent-related procedures falls on a holiday (including the Workers’ Day under the Designation of Workers’ Day Act), the said period shall expire on the following day.” According to Article 3(1) of the former Patent Act, the term “patent-related procedures” refers to “application, request, and other procedures for patent”. Article 5(1) and (2) of the former Patent Act distinguish between “patent-related procedures” and “instigation of a lawsuit against a disposition issued by an administrative agency under the Patent Act or an order under the Patent Act”. Article 14 Subparag. 4 of the former Patent Act provides that “The above provision of the former Patent Act shall apply mutatis mutandis to all the procedures for patent-related procedures to the Korean Intellectual Property Office or the Patent Tribunal, Article 15 of the former Patent Act shall apply mutatis mutandis to “the period of time for filing the lawsuit” and Article 186 of the former Patent Act.

2. The record reveals that the Plaintiff received a certified copy of the instant trial decision on April 1, 2013 and submitted the instant complaint to the lower court on May 2, 2013, 2013, which is the 31st day from that time. However, Article 186(3) of the former Patent Act, which applies mutatis mutandis to a lawsuit concerning a utility model under Article 56 of the former Utility Model Act, provides that “an action against a trial decision” must be brought within 30 days from the date of receipt of the certified copy of the trial decision, and “worker’s Day” under the Designation of Workers’ Day Act does not fall under “ Saturdays or legal holiday” under Article 161 of the Civil Act, and thus, on May 1, 2013, which becomes the 30th day from April 1, 2013, the filing period of the instant lawsuit seeking the revocation of the trial decision, shall be deemed to have expired on May 1, 2013.

Therefore, the decision of the court below which dismissed the lawsuit of this case in the same purport is just, and there is no error of law such as misunderstanding of legal principles as alleged in the grounds of appeal.

3. 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 on the bench.

Justices Kim So-young (Presiding Justice)