CALCULATION OF TIME LIMITS UNDER PATENT LAW

01/01/2001

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In a May 2000 judgment, the Administrative Court stated that statutory time limits may, ac-cording to their natures, be divided into ordinary time limits and invariable time limits, and it is not the case that all statutory time limits are in-variable time limits. A procedural time limit for the fulfillment of a duty to act shall not be as-sumed to be an invariable time limit. Article 25 of the Patent Law provides that a patent applicant who claims priority must submit a priority document within three months from the filing date. Because this is a time limit for submitting evidential documents, it is not an invariable statutory time limit.

In the same judgment, the Administrative Court also ruled that the wording of the Patent Law with regard to time limits is inconsistent, with "from the day following the day of..." used in some provisions, and "from the day of..." used in others. The time limit set by Article 25 of the Patent Law is a procedural time limit for the performance of an action, and the first day should not be counted as part of the period.

Based on the above judgment, on 19 October 2000, the IPO announced the following:

Since the time limit defined by Article 25 of the Patent Law is a procedural time limit for the performance of an action, it, by its nature, cannot be regarded as a special provision; the relevant provisions of the Civil Code therefore apply, and the first day of the period should not be counted.

The first day should not be counted as a part of any of the time limit set forth in the following articles of the Patent Law: Article 20 Para-graph 1 Items 1 and 3 (exceptions as to nov-elty for invention patents); Article 98 Para-graph 1 Items 1 and 3 (exceptions as to nov-elty for new utility model patents); Article 25 (submission of priority documents); Article 51 Paragraph 2 (applications for patent term ex-tension); Article 41 Paragraph 2, Article 72 Paragraph 4, Article 102 Paragraph 2 and Ar-ticle 115 Paragraph 2 (submission of reasons and evidence in opposition and cancellation actions).