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CHAPTER VIII : Retrial
Article
178 ¡¼Request for Retrial¡½
(1) Any party may request a retrial against a trial decision which
has become final and conclusive.
(2) The provisions of Articles 422 and 424 of the Code of Civil
Procedure shall apply mutatis mutandis to a request for
retrial under paragraph (1).
Article
179 ¡¼Request for Retrial on Account of Collusion¡½
(1) Where the parties in a trial acted in collusion for the purpose
of causing a trial decision to be rendered which damages the rights
or interests of a third party, such third party may request a
retrial against the trial decision which has become final and
conclusive.
(2) In the case of a request for a retrial under paragraph (1),
the parties of the trial shall be joint defendants.
Article
180 ¡¼Time Limit for Request for Retrial¡½
(1) A retrial shall be requested within thirty days from the date
on which the petitioner becomes aware of the grounds for the retrial
after the trial ruling became final and conclusive.
(2) Where a retrial is requested by reason of defects in a power
of attorney, the time limit provided for in paragraph (1) shall
be counted from the day following the date on which the petitioner
or his legal representative becomes aware that the trial ruling
had been rendered, by means of a transmittal of the certified
copy of such ruling.
(3) No request for a retrial shall be made after the expiration
of three years from the date on which the trial ruling became
final and conclusive.
(4) Where grounds for a retrial arise after the trial ruling has
become final and conclusive, the time limit prescribed in paragraph
(3) shall be counted from the day following the date on which
the grounds first arose.
(5) Paragraphs (1) and (3) shall not apply to a request for a
retrial made on the grounds that the trial ruling conflicts with
a final and conclusive trial ruling previously rendered.
Article
181 ¡¼Restriction on Effects of Patent Rights Restored by Retrial¡½
(1) Patent rights shall not be effective to any product that was
imported into, manufactured or acquired in good faith, in the
Republic of Korea after the trial ruling became final and conclusive
but before a request for a retrial has been registered, in any
of the following cases:
(¥¡) where the patent right whose patent or registration of term
extension was concluded to be invalid (including a patent right,
the revocation of which was concluded by a trial decision
of revocation), has been restored by a retrial;
(¥¢) after a trial ruling that a product was outside the scope
of the patent right became final and conclusive, where a ruling
to the contrary at a retrial has become final and conclusive;
or
(¥£) where the establishment of a patent right or the extension
of a patent term with respect to a patent application or application
for registration of extension of patent term, previously refused
by a trial ruling, has been registered through retrial.
(2) Patent right under the provisions of paragraph (1) of this
Article shall not extend to the following acts:
(¥¡) working of the invention in good faith after a trial ruling
became final and conclusive but before the registration of a request
for retrial;
(¥¢) in the case of a patent for an invention of a product, acts
of manufacturing, assigning, leasing, importing, or offering for
assigning or leasing such articles as to be used exclusively for
the manufacture of the products, in good faith, after trial decision
became final and conclusive but before the registration of a request
for retrial; and
(¥£) in the case of a patent for an invention of a process, acts
of manufacturing, assigning, leasing, importing, offering for
assigning or leasing such articles as to be used exclusively for
the working of the process, in good faith, after a trial decision
became final and conclusive but before the registration of a request
for retrial.
Article
182 ¡¼Non-exclusive License for Prior User of Patent Right
Restored by Retrial¡½
For cases which fall under any of the subparagraphs of Article
181(1), any person who has, in good faith, commercially or industrially
worked the invention in the Republic of Korea, or has been making
preparations therefor, after a trial ruling became final and conclusive
but prior to the registration of a request for retrial, such person
shall have a non-exclusive license on the patent right to the
extent of the invention and of the purpose of business which is
being worked or of which the preparations for working are being
made.
Article
183 ¡¼Non-exclusive License for Person Deprived of a Non-exclusive
License by Retrial¡½
(1) Where, after a decision to grant a non-exclusive license under
Article 138(1) or (3) has become final and conclusive, a decision
to the contrary is rendered at a retrial, any person who has,
in good faith, commercially or industrially worked the invention
in the Republic of Korea or has been making preparations therefor
under a non-exclusive license, prior to the registration of a
request for retrial, such person shall have a non-exclusive license
on the patent right or on the exclusive license existing at the
time the decision at the retrial becomes final and conclusive,
the said license being limited to the purpose of his business
and to the scope of the invention under the original non-exclusive
license.
(2) The provisions of Article 104(2) shall apply mutatis mutandis
to the case referred to under paragraph (1).
Article
184 ¡¼Mutatis Mutandis Application of Provisions
on Trial to
Retrial¡½
The provisions relating to a trial shall apply mutatis mutandis
to a request for a retrial against the decision of trial decision,
unless they are not compatible.
Article
185 ¡¼Mutatis Mutandis Application of Provisions
of the Code
of Civil Procedure¡½
The provision of Article 429(1) of the Code of Civil Procedure
shall apply mutatis mutandis to a request for retrial.
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