Where a decision on invalidation of a patent becomes final and conclusive, whether a public prosecution based on a patent-related complaint prior to the final and conclusive decision constitutes “when the procedure for filing public prosecution is null and void in violation of the provisions of the Act” under Article 327 Subparag. 2 of the Criminal Procedure Act

Articles 133(3) and 225(1) of the Patent Act, Article 327 subparag. 2 of the Criminal Procedure Act

A and one other

Prosecutor

Suwon District Court Decision 2004No2019 Decided July 5, 2007

The appeal is dismissed.

We examine the grounds of appeal.

An infringement of patent right under Article 225(1) of the Patent Act is a crime that can be discussed only when a victim files a complaint. If a trial decision invalidating a patent becomes final and conclusive, the patent right shall be deemed never to have existed unless it falls under Article 133(1)4 of the Patent Act (see Article 133(3) of the Patent Act). Thus, even if a complaint is filed prior to the final and conclusive trial decision on invalidation becomes final and conclusive, a complaint based on the patent right shall not be deemed a legitimate complaint by the complainant. A public prosecution based on such a complaint shall not be deemed a legitimate complaint by the complainant, and the procedure for filing a public prosecution under Article 327 subparag. 2 of the Criminal Procedure Act shall be deemed invalid

If the patent right becomes null and void because the patented invention in this case became final and conclusive in a patent invalidation lawsuit against which the complainant was a party as stated in the judgment below, the public prosecution in this case cannot be dismissed even if the public prosecution in this case was instituted in accordance with the complaint before the invalidation of the patent right becomes final and conclusive, and the judgment below is based on such legal principles, and there is no error in the misapprehension of legal principles as to the grounds for rejection of public prosecution. The grounds for appeal by the prior prosecutor cannot be accepted on different premise

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

Justices Kim Nung-hwan (Presiding Justice)