A Lazy Patentee and a Bad Decision: A Comment on the case of Novartis A. G.’s Patent Term Extension

This study provides a commentary on the relationship between the extension of the patent term and patent right. According to Article 14 of the Patent Act, if the last day of the patent prosecution procedural period is a holiday, the period of applying a patent term extension will be extended until the next business day. However, the patent duration is not the period to which the said article. Rather, it is specified by two conditions and the period between two fixed specific times. The right for the patent term extension is a procedural right, while an applicant’s patent right is a substantial right. Next, the trial operation of the patent extension procedure is the administrative government’s basic right under the Constitution. Meanwhile, the patent right is a fundamental right of the nation under the Constitution. These two rights are completely different. Therefore, Article 14 of the Patent Act, which regulates patent proceedings, does not apply to and extend patent rights of patentee. Since patent rights come from a patent contract between the government and patentee, the patent term should be uniformly determined. This is a reciprocally balanced consideration between them. I do not think the court correctly understands the concepts of condition and patent contract. Finally, the decision and rule discussed here can be evaluated as a bad decision and rule to protect the patent holder, who has neglected to duly apply for the patent term extension after a patent right was exhausted.