[거절사정][공1988.3.1.(819),411]
Criteria for determining similarity of a device
In determining the same or similar design as a utility model applied for in the application, the shape, structure, or combination of each product is an important standard for determining whether the external device related to the shape, structure, or combination of the product is identical or similar, but the device should have a certain degree of creation of a new technical idea that can be used in the industry achieved by the innovation of the product, unlike the design that contains only the external shape of the product, unlike the design that contains only the external shape of the product, and the other device should have a certain degree of creation of a new technical idea that can be used in the industry achieved by the innovation of the union. However, if it is merely the degree of the modification of the material and form and does not result in any operational progress due to such modification,
Articles 3 and 5 of the Utility Model Act
Samdo Water Industrial Co., Ltd. (Patent Attorney Kim Ma-tae, Counsel for the defendant-appellant)
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Office Decision 647 No. 647 decided July 22, 1987
The appeal is dismissed.
The costs of appeal shall be assessed against the applicant.
The grounds of appeal by the applicant's attorney are also examined.
In determining whether a device is identical or similar to a device different from a utility model filed in the application, the appearance, structure, or combination of each product is an important standard of determination as to whether the external device related to the shape, structure, or combination of the product is identical or similar to the other device, but the device should have to a certain degree of the creation of a new technical idea that can be used in the industry achieved by the external shape, structure, or the originality of the union, unlike the design whose external shape is the exclusive substance of the product, and the other device should not be considered as a device that can be registered as a utility model if it is merely a degree of changing materials and form and it does not bring about any action in the effect due to such change.
According to the reasoning of the original decision, the court below reviewed the plaintiff's present draft against each reference document (the utility model and the Patent Gazette disclosed in one country) of the decision that had already been published in Korea, and maintained the decision of the court of first instance rejecting the application for its registration, based on the following reasons: (a) although the technical composition or action effect of both parties is identical or similar to one another; and (b) there is a difference between the two parties in the decision, it is entirely new technical composition or rise effect; (c) and (d) the plaintiff's present draft is nothing more than that easily designed if it is a person with ordinary knowledge in this technology from the contents indicated in the reference document, a publication distributed in Korea and abroad before the application
In comparison with the records, the court below's findings of fact in the process are justified, and there is no error in the misapprehension of the legal principles as to the determination of facts or newness in a utility model, such as the theory of litigation, or in the misapprehension of the legal principles as to the newness in a utility model. The arguments are groundless.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Man-hee (Presiding Justice)