[1] Whether the provision of calculating the period under the Civil Act applies mutatis mutandis to the filing period of a petition for a final appeal against a judgment on revocation of a trial decision rendered by the Patent Court

[2] The case holding that in the case where the last day of the period is a Saturday, the period shall expire on that day, since Article 161 of the Civil Code was amended and the application of Article 161 of the former Civil Code is excluded after the amendment as to the "case pending in the court" as of the enforcement date of Article 161 of the Civil Code after the amendment

[1] Article 161 of the Civil Act, Article 8 of the Administrative Litigation Act, Article 170 of the Civil Procedure Act / [2] Article 161 of the Civil Act, Article 161 of the former Civil Act (amended by Act No. 8720 of Dec. 21, 2007)

[1] Supreme Court Decision 2003Hu922 Decided July 28, 2005 (Gong2005Ha, 1454)

[Plaintiff-Appellant-Appellant] Corpart Holdings (Patent Attorney Jung Young-young et al., Counsel for plaintiff-appellant-appellant)

The Commissioner of the Korean Intellectual Property Office

Global Li fund Holdings AB (Law Firm Korea, Patent Attorney Park Jae-young et al., Counsel for the defendant-appellant)

Patent Court Decision 2008Heo1180 decided July 25, 2008

The petition of appeal shall be dismissed.

As clearly stated in the text, subparagraphs 1 through 4 of Article 14 of the Patent Act shall apply only to the calculation of the period by order under the Patent Act or the Patent Act. However, Article 186(8) of the Patent Act only provides that a final appeal against a decision of the patent court may be filed with the Supreme Court, but does not provide for the period by which the final appeal may be filed with the Supreme Court. Therefore, as long as the nature of the lawsuit is a kind of administrative litigation (see Supreme Court Decision 2003Hu922, Jul. 28, 2005) with respect to a decision of revocation of a trial decision by the patent court, the Civil Procedure Act applied mutatis mutandis under Article 8 of the Administrative Litigation Act, and Article 170 of the Civil Procedure Act provides that the calculation of the period shall

Article 161 of the former Civil Act (amended by Act No. 8720 of Dec. 21, 2007; hereinafter the same applies) which applies to the calculation of a period provides that "if the last day of a period falls on a holiday, the said period shall expire on the following day," but Article 161 of the Civil Act amended by Act No. 8720 of Dec. 21, 2007 provides that "if the last day of a period falls on a Saturday or a national holiday, the said period shall expire on the following day, and if the last day of a Saturday, the said period shall expire on the following Saturday."

However, Article 1 of the Addenda of the above amended Civil Code provides that "the amended provisions of Article 161 shall enter into force on the date three months have elapsed after its promulgation," and Article 3 (1) of the Addenda provides that "this Act (excluding the amended provisions of Article 837) shall not apply to cases pending in court at the time of enforcement of this Act." Therefore, with respect to "cases pending in court" as of March 22, 2008, which are the enforcement date of Article 161 of the Civil Code after the above amendment, the application of Article 161 of the Civil Code after the amendment shall be excluded in relation to the last day of the period, and Article 161 of the former Civil Code shall be applied.

In this case, the Civil Procedure Act and the Civil Act apply to the calculation of the period of filing an appeal against the judgment as a litigation to revoke the decision of the Patent Court which was deliberated by the original court. According to the records, it is evident that the case was continuing to the original court on the basis of the enforcement period under Article 161 of the Civil Act after the amendment. Thus, Article 161 of the former Civil Act applies to the calculation of the period

Meanwhile, according to the records, the expiration date of the period for filing an appeal of this case (see Articles 425 and 396 of the Civil Procedure Act) calculated from August 1, 2008 to 2 weeks from the date on which the plaintiff received the written judgment of the court below was served shall be August 16, 2008 and the end of the above period shall be August 16, 2008, which is the next day on August 15, 2008. Although the day falls under Saturdays, it shall not be deemed that Saturdays falls under Saturdays, but in the interpretation of Article 161 of the former Civil Act, it shall not be deemed that Saturdays falls under Saturdays. Thus, the period for filing an appeal of this case shall expire after August 16, 2008.

If so, it is clear that the final appeal of this case filed on August 18, 2008 was filed with the aim of the filing period of the final appeal, and the defect cannot be corrected. Thus, it is ordered as ordered under Articles 425 and 402(2) of the Civil Procedure Act.

Justices Lee Hong-hoon (Presiding Justice)