[권리범위확인][공1992.1.1.(911),117]
A. Whether using promotions falls under the scope of a patent right with respect to previous manufacturing methods for which the effect of production has improved compared with the previous manufacturing methods falls under the scope of a patent right with respect to which the former manufacturing methods have not been used (negative)
(b) The case reversing the original trial decision on the ground that it has been recognized that the rate of acceptance in the invention of subparagraph (a) on the manufacturing method of chemicals is higher than that in the patented invention without any evidence, or that it has committed an unlawful act in the incomplete trial;
A. The use of promotions in the process of manufacturing chemical substances is remarkably different from the professional engineer's position. Thus, the method of manufacturing a patent without any mentioning the promotional use and the method of manufacturing a product using promotions shall be different from each other except where it is recognized that the use of promotional substances is not aimed at gaining the opportunity in the effect of the operation, but rather it is not only for adding a valuable process. Accordingly, the latter method is outside the scope of the right of an electronic patent.
(b) The case reversing the original trial decision on the ground that the fact-finding was recognized without any evidence, or that the failure to conduct an incomplete hearing has committed an unlawful act on the ground that the rate of the royalty in the invention under subparagraph (a) on the manufacturing method of chemicals is remarkably higher than that of the patented invention.
A. B. Article 6(1) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990)
A. Supreme Court Decision 83Hu85 delivered on April 9, 1985 (Gong1985, 732)
Attorney Cho Jong-il et al., Counsel for the defendant-appellant
(1) The patent attorney Choi Jong-chul, Counsel for the defendant-appellant
Korean Intellectual Property Office Decision 88 No. 332 dated July 24, 1990
The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. On the first and third grounds for appeal
Under its reasoning, if the original trial decision reviews the technical contents of the invention (registration number omitted) of the respondent's patent registration (hereinafter referred to as the "patent of this case"), the two starting material, reaction material and objective material are the same, but the other thing is the same, while the patent of this case is not used for crypt, (A) the patent of this case uses the tetrarinated biphenylspolodide brodide as the tetracul culs, and (a) the patent of this case uses the diculthide gludide gludide drix as the reaction material, compared with the use of the diculd dicide gludide drix (NaH) invention, while the patent of this case uses the dicul droid (NaOH) invention of this case, the patent of this case uses the drhedide drhedide drhedide and the reaction rate of this case is 90 percent dr.6 percent dr2.
The use of promotions in the manufacturing process of chemicals differs significantly from the professional engineer. Thus, the patent manufacturing process and the manufacturing process using promotions without any reference to the promotional use are different except where it is deemed that the use of promotional materials is not aimed at achieving the friendlyness in the operating effect, but is not only at adding a value-free fair. Therefore, the latter method is outside the scope of rights of electronic patents (see Supreme Court Decision 83Hu85 delivered on April 9, 1985).
However, according to the records, no evidence can be found to prove that (a) invention's ratio of the above target substance reaches 86.7% from the evidence submitted by the claimant. However, if the (a) invention's ratio of the (b) invention's (i) invention's (i) invention's (ii) invention's (ii) invention's (ii) invention's (iii) evidence No. 1 reaches 79.6%, and (iv) other parts of the same proof are not only 7.5%, but also 82.6% from the patent's (i) invention's (ii) invention's non-use of the promotion, and 80.2% from the patent's (iii) invention's (iv) invention's (i) invention's (i) invention's (i) invention's (ii) invention's (ii) invention's (iii) invention's ratio is lower than 79.6% from the case of using the promotion. Thus, it is difficult to recognize that the latter part of the target material's (ii) invention's) is more than this case's.
Therefore, the court below should have deliberated whether the ratio of the number of the inventions in subparagraph (a) above was higher than that of the patent in this case as asserted by the claimant, but it is found that the above ratio of the number of the inventions in subparagraph (a) above was significantly higher than that of the patent in this case and judged that there was a significant difference in the operating effect of the invention in this case without any deliberation. The court below determined that there was a significant difference in the operating effect of the invention in this case without any evidence. Thus, it is reasonable to point this out.
Therefore, it is decided as per Disposition by the assent of all participating Justices on the bench that it is unnecessary to determine the remaining grounds of appeal, and the case is reversed, and the appeal is remanded to the Korean Intellectual Property Office.
Justices Choi Jae-ho (Presiding Justice)