[특허무효][공1994.6.1.(969),1482]
(a) Where there exists any ground for invalidation of a patent, such as where part of the claim(s) falls under the scope of the known technology, whether all the claims should be invalidated;
(b) Criteria for recognition of inventive step of salt products made by mixing two or more compounds;
A. In the Republic of Korea where the scope of a patent claim is adopted, where there are two or more claims within the scope of the patent claim, each claim within the scope of the patent claim may be invalidated. However, where some of the claims falls within the scope of the publicly known technology, etc. and there are grounds for invalidation of a patent, such as where part of the claims falls within the scope of the publicly known technology, the whole claim shall be invalidated unless it is deemed that such publicly known technology, etc. is closely combined with other non-obviousness recognized parts, and no invalidation shall be made only within the scope of the claims.
B. The inventive step of salt products manufactured by mixing two or more compounds at a prescribed rate shall be determined on the basis of whether the product itself works in the composition itself, and even if individual ingredients constituting the composition belong to the publicly known range, if they are mixed at a prescribed rate and if the previous effect has been created as a result of mixing it with the set rate, it shall be non-obviousness.
Articles 69(2) and 6(2) of the former Patent Act
Sym Chemical Industry Co., Ltd., Counsel for the plaintiff-appellant
Attorney Gyeong-sung et al., Counsel for the defendant-appellant
Korean Intellectual Property Office 23 trial ruling dated July 28, 1990
The original adjudication shall be reversed.
The case shall be remanded to the Korean Intellectual Property Office Appeal Office.
The grounds of appeal are examined.
1. According to the original decision, the court below held that the invention of this case is related to the development of reaction material which combines 95-60wt 95-60w with the general formula (II), which is indicated as the invention of this case as shown in its explanation, and that the general formula (I) compound used in the invention of this case and the general formula (II) compound used in the art 2 through 9 of the invention of this case are an officially known compound, and that it is not possible to execute the invention in itself, and that the non-obviousness of the general formula (II) compound used in the art 10 to 15 is not included in the claim(s) and the non-obviousness of the invention of this case is not included in the non-obviousness of the invention of this case as a non-obviousness compound of 10, 11, and the general formula (II) compound of this case's invention of this case's invention of this case's invention of this case's invention of this case's non-obviousness is non-obviousness and non-obviousness of the general formula 151 to be non-obviousness.
2. Where there are two or more claims within the scope of a patent claim in Korea adopting different claims, each claim within the scope of the patent claim may be invalidated (see Article 69(2) of the former Patent Act before the amendment as of January 13, 190, and Article 133(1) of the current Act). However, where some of the claims are subject to invalidation, such as where a part of the claims falls under the scope of the publicly known technology, the whole claim shall be invalidated unless it is recognized that the publicly known technology, etc. is closely combined with other non-obviousness recognized parts, and it shall not be invalidated only with respect to a part of the claims.
3. The patent of this case is related to salt royalty-making products made by mixing two or more compounds at a prescribed ratio, and the inventive step of salt-making products should be determined depending on whether the product itself works as a composition itself, and even if individual ingredients constituting a component belong to the publicly known range, if it is mixed at a prescribed ratio and resulting in an unforeseeable operation effect in the past, it shall be deemed as non-obviousness.
Therefore, the court below should apply the legal principle that the whole patent shall be invalidated in case of partial invalidation by examining whether there is an action effect of the created product itself among the created products of the original patent as a single claim after examining whether there is an action effect of the created product as well as whether there is an action effect of the created product in the overall description of the claims and specifications of the original patent. However, in the case of 2 through 15 of the original patent as a single claim, the court below held that the composition of each salt shall not be a characteristic of the invention without any reasons without determining the action effect as a composition product in the case of 2 or 15 of the original patent as a single claim, and held that even if there is a ground for partial invalidation in the original patent as a single claim, the nonobviousness of the invention shall be recognized in the case of 1 of the original patent as a non-obviousness, and thus, the entire patent cannot be deemed null and void. The judgment of the court below erred by misapprehending the legal principles as to the ground for invalidation
Therefore, without further proceeding to decide on other grounds of appeal, the original decision is reversed, and the case is remanded to the Korean Intellectual Property Office appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Young-young (Presiding Justice)