The provision of Article 28(2) of the Patent Act does not apply to patent fees with the intention of the late payment period of patent fees after patent registration. Accordingly, a patent restoration disposition that is made by applying the above provision is null and void as a matter of course.

(a) Article 28(2) of the former Patent Act (amended by Act No. 2505 of Feb. 8, 73), which provides for exemption from neglect, provides that a patent shall not apply in cases where the payment of patent fees is deemed to be extinguished retroactively from the expiration of the payment period for patent fees due to the failure to pay patent fees within the delayed payment period of patent fees after patent registration, as provided in Article 71(3) of the same Act.

(b) In the case of paragraph (3) of Article 71 of the same Act, where a disposition of recovery was made on the ground that the provisions of paragraph (2) of Article 28 of the same Act apply, there is a defect in violation of law in accordance with subparagraph (a) above, and the said disposition of recovery is null and void as it is significant and apparent.

(c) Even after an invalid patent invalidation disposition, the foregoing invalidation disposition cannot be converted to remedy or valid on the ground that the patent country has received patent fees continuously, and that there is a fact that the patent right has been transferred or registered for establishment of an exclusive license for more than seven years, by recognizing the patent as a patentee.

Article 28 of the Patent Act, Article 71 of the Patent Act

Plaintiff 1 and one other

Director of the Patent Bureau

Seoul High Court Decision 70Gu308 delivered on February 16, 1971

All appeals are dismissed.

The costs of appeal shall be borne by the plaintiffs.

We examine the Plaintiffs’ agent’ grounds of appeal.

(1) On the first ground for appeal

As provided in Article 28(2) of the Patent Act, exemption from the obligation to pay patent fees under the provision of Article 28(2) of the Patent Act does not constitute a case where a person who filed an application, a request, or any other procedure has failed to pay patent fees when he neglected a specified period of time for subsequent acts or has failed to pay patent fees when he received registration, and the application, a request, or any other procedure is invalidated, except as otherwise provided in the Patent Act. It is reasonable to view that exemption from the obligation to pay patent fees is not a case where the patent fees are deemed extinguished retroactively from the time when the due date for failing to pay patent fees within the deferred payment period after the patent registration is deferred, as provided in Article 71(3) of the Patent Act. Therefore, even in the case of Article 71(3) of the Patent Act, the defendant's disposition that restored after the application of the provision of Article 28(2) of the Patent Act has a defect in violation of the Act, and therefore, the defect is grave and apparent and void. It is without merit.

(2) On the second ground for appeal:

As of February 19, 1970, the Defendant’s disposition of February 19, 1970, based on the premise that the patent recovery disposition claimed by the Plaintiffs is null and void as a matter of course, is not required to cancel the administrative disposition on the premise that it is valid, and it is not necessary to cancel the administrative disposition on the premise

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the invalidation and cancellation of an administrative act. As long as the disposition as of August 12, 1964 is deemed to be null and void, even though the court below did not judge whether or not it deviates from the limitation of sound reasoning as to the right to cancel the administrative act, it is not considered that there is an error of omission of judgment.

(3) On the third ground for appeal:

After the recovery disposition on August 14, 1964, the defendant continued to receive patent fees even after the recovery disposition on August 14, 1964, and has been recognized and protected as a patentee over seven years, and there are other facts, such as the fact that the patent transfer or the exclusive license establishment registration was obtained, and thus, the recovery disposition cannot be converted into remedy or valid. The judgment of the court below with the purport of this purport is just, and there is no error of law by misapprehending the legal principles on the recovery of defects in administrative acts and conversion of invalidation.

Therefore, this appeal is without merit, and all of its appeals are dismissed, and the costs of appeal are assessed against the losing parties. This judgment is delivered with the opinions of the participating judges.

The judge of the Supreme Court (Presiding Judge) of the Republic of Korea shall take part in the interest of the Red Round.