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Summary of IP High Court Grand Panel Decision on Scope of Patent Right with Registered Patent Term Extension

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ABSTRACT
The Intellectual Property High Court (IP High Court) handed down a decision on January 20, 2017, in the 11th Grand Panel case in total, i.e., Appeal Case No. 2016 (ne) 10046, in which injunction against patent infringement was sought. The issue of contention was how to determine the effective scope of a patent right the term of which was extended via patent term extension (PTE) registration based on marketing approval of a pharmaceutical product (administrative deposition). In the decision, the IP High Court ruled that the effective scope of a patent right extended via PTE registration shall not be limited to a product identical to the subject of the deposition on which the PTE registration of the patent is based, but shall extend to a product which is substantially identical to the subject of the deposition. The court also ruled that if there is a difference from the subject of the deposition, the allegedly infringing product shall be deemed to be substantially identical to the deposition subject and thereby fall within the effective scope of the patent right extended via PTE registration, provided that the difference is deemed merely a minor difference or a formal difference as a whole.

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