Defendant Dong Dong Yang Incorporated Co., Ltd. shall pay to the Plaintiff 271,704,037 won with 5% interest per annum from March 20, 2008 to March 31, 2010, and 20% interest per annum from the next day to the day of full payment.

2. The part against Defendant 2 in the judgment of the court of first instance is revoked, and the corresponding plaintiff's claim is dismissed.

3. The plaintiff's appeal against the defendants and the remaining appeal against the defendant Dongyang Comprehensive Construction Business Corporation are dismissed.

4. The plaintiff's claim against the defendant Dongyang Comprehensive Construction Business Co., Ltd. added in the trial is dismissed.

5. Of the total litigation costs, the portion arising between the Plaintiff and the Defendant Dongyang Comprehensive Construction Business Co., Ltd. shall be borne by the Plaintiff; 70% by the Plaintiff; 30% by the Defendant Dongyang Comprehensive Construction Business Co., Ltd.; and the portion arising between the Plaintiff and Defendant

1. Defendant Dong Dongyang Construction Business Co., Ltd. (hereinafter “Defendant Company”) is:

(a) not, until the expiration of the patent term of each patent listed in the separate sheet, engage in business activities, execute works, and exercise any other rights to all works that reflect the design of each of the construction works located in the Daegu Metropolitan City or Gyeong-do area as an administrative district; and

B. As to KRW 266,238,050 and KRW 66,238,050 among the Plaintiff, 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment shall be paid to the Plaintiff with 6% per annum from May 11, 2005 to the day of service of a copy of the request for modification of the purport of the claim and the cause of the claim from April 7, 2009, and 20% per annum from the next day to the day of complete payment.

2. The Defendants shall pay each of them 969,680,000 won with 5% interest per annum from March 20, 2008 to June 27, 2008 and 20% interest per annum from the next day to the day of full payment.

(The plaintiff withdrawn the claim for prohibition and the claim for settlement of accounts against Defendant 2 in the trial, and reduced the claim for prohibition and the claim for settlement of accounts against the defendant company and added the loan claim to it).

1. The part of the judgment of the court of first instance against the plaintiff shall be revoked.

2. The Plaintiff:

A. The defendant company:

(1) From among construction works located in the Daegu Metropolitan City or Gyeong-do area as an administrative district by the expiration of the patent term of each patent listed in the separate sheet, the construction site is prohibited from exercising business activities, construction works and other rights for receiving orders without the Plaintiff’s permission for all construction works reflected in the design of each patent among construction works located in the Daegu Metropolitan City or Gyeong-do area, and the Plaintiff must entirely perform all construction works within the Daegu Metropolitan City or Gyeong-do area where the design of each patent is reflected before September 21, 2005;

(2) 85,00,000 won and 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of full payment.

B. The Defendants:

(i) suspend any construction work which is being or is scheduled to be in progress contrary to subparagraph (a)(1), shall not continue, and shall not cause a third party to continue it; and

(2) Each party shall pay 51,485,00 won with 5% interest per annum from March 20, 2008 to June 27, 2008 and 20% interest per annum from the next day to the day of full payment.

(The purport of the appeal has also been reduced to the extent of the appeal by the Plaintiff’s withdrawal or reduction of the claim as above in the trial).

Defendants:

The part against the Defendants in the judgment of the first instance shall be revoked, and the corresponding plaintiff's claim shall be dismissed.

【Facts without any dispute, Gap’s evidence Nos. 1, 2, 4, Eul’s evidence Nos. 1, 2, and 8, non-party 1 and 2’s testimony and the purport of the whole pleadings

A. The Defendants are co-owners of each patent listed in the separate patent list (hereinafter “instant patent”). At the time of the instant patent registration, the Defendant Company and Yangyang C&C Co., Ltd. shared the patent right at the time of the instant patent registration. On November 11, 2005, Yangyang C&C Co., Ltd. transferred its shares to Dongyang P&C Co., Ltd. (hereinafter “Dongyang P&C”) on September 11, 2006, and Dong Yang P&C transferred its shares to Defendant 2 on September 11, 2006. Meanwhile, the Defendant Company entered into a contract on the establishment of a non-exclusive license for the instant patent with the Daeyang M&C Co., Ltd. on December 7, 2004 (hereinafter “T&C construction”), and agreed to receive 5% of the amount of the contract (supply price) as the royalty for executing the instant patent (Evidence evidence 8).

B. From around 2003, the Plaintiff used the instant patent with Defendant Company’s consent, and paid 5% of the supply value of the construction contract to the Defendant Company as patent fees. Around July 2005, the Plaintiff requested the Defendant Company to grant an exclusive license only in the Daegu Metropolitan City and Gyeongbuk-do area. In response, the Defendant Company requested the Defendant Company to lend funds to the Defendant Company and Dongyang-dong SPC in return, and the Plaintiff agreed on September 20, 2005, the Plaintiff deposited KRW 50 million in the name of the Defendant Company or Dongyang-dong SPC at the bank designated by the Plaintiff to obtain the loans from Dongyang-dong PPC. In order to obtain the loans from the Defendant Company, the Plaintiff agreed on September 20, 2005 after deducting the Plaintiff’s exclusive use fee of the patent of this case and the patent of this case as the technical loan and loan from the Daegu and Seoyang-dong area (hereinafter “the remainder of the agreement”).

C. On September 21, 2005, the Plaintiff entered into a contract with the Defendant Company for approval of the exclusive use of technical rights (hereinafter “instant exclusive use agreement”) with respect to the instant patent as follows.

⒧ 전용사용승인서 기재 내용

본문내 포함된 표 항목 내용 비고 전용사용 승인지역 대구광역시·경상북도 ？ 전용사용 승인기간 2005년 9월 ~ 2022년 특허보호 기간 만료시까지 기타 사항 별지 계약에 의함 ？

She Details of the Attached Contract

㈎ 제1조: 계약의 목적

The purpose of the exclusive use approval agreement of this case is to grant the Plaintiff exclusive license to the patent of this case owned by the Defendant Company, based on which the Plaintiff actively reflecteds the patent of this case in the construction work, and, based on this, is to grant the Plaintiff exclusive license to either directly contract the construction work reflected in the design, or to grant the Plaintiff all rights in receiving the contract in the form of subcontract.

㈏ 제2조: 계약기간 및 범위

(1) The contract period shall expire from the date of concluding the contract to the expiration of the patent period.

(2) The scope of approval of an exclusive license shall be limited to construction works in Daegu Metropolitan City or Gyeong-do areas where construction sites (including snow and installation) are located in the administrative district.

③ No person, other than the Plaintiff, may assert business activities, construction, or any other rights, after the date of conclusion of the exclusive use approval agreement of this case in Daegu Metropolitan City or Gyeong-do.

㈐ 제4조: 권리의 효력범위

① The effect of an approval for exclusive use of the title shall be entirely based on the Plaintiff’s efforts to reflect the patent technology of this case in the design of construction works and limited to the unit construction works for which the Plaintiff received orders.

② In the event that the Plaintiff orders unit construction works under the preceding paragraph, the unit construction type (the sloping beam production and installation of bridges corresponding to patent construction methods) of the patent construction method of the instant case is entirely the right of the Plaintiff to perform the construction works.

㈑ 제5조: 전용사용권 승인에 따른 대가

① As to the approval agreement for exclusive use of the instant case, royalties for technical use with the approval of the Plaintiff’s exclusive license are as follows.

1. After the approval of the exclusive use of the technical right in each subparagraph of Article 1 (patent of this case and all the technical rights related thereto) is entered into, the Plaintiff shall pay to the Defendant Company the exclusive use fee of KRW 50 million, and at the same time, all the rights specified in the contract shall be transferred to the Plaintiff.

2. The Plaintiff shall pay 5% of the contract price (the supply price) to the Defendant Company as the royalty in the case of a construction project, which is exclusively based on the Plaintiff’s efforts (including design reflectrs).

3. Prior to the date of the conclusion of the instant exclusive use approval agreement, all construction works in Daegu Metropolitan City and Gyeongbuk-do, which reflect the design construction method of the instant patent law, are entirely executed by the Plaintiff in the future. The Plaintiff shall pay 8% of the supply value agreed between the original contractor and the Plaintiff to the Defendant Company (hereinafter “instant 8% exclusive use fee”). The Plaintiff shall preferentially deduct the Defendant Company’s 200 million won from the deposit money and the 8% exclusive use fee to be paid for each construction in the future.

D. Meanwhile, at the time of the conclusion of the exclusive use approval agreement of this case, the Plaintiff and the Defendant Company consulted on the disposal plan of KRW 300 million to be held by the Defendant Company in accordance with the agreement of this case. Of KRW 300 million, the Plaintiff paid KRW 50 million to the Defendant Company as the exclusive use fee stipulated in Article 5 (1) 1 of the instant exclusive use approval agreement, and the remainder of KRW 250 million to the Defendant Company, as stipulated in Article 5 (1) 3 of the instant exclusive use approval agreement, shall be deemed as the deposit for which the Plaintiff would preferentially deduct the 8% fee to be paid to the Defendant Company, as stipulated in Article 5 (1) 3 of the instant exclusive use

E. In order to establish an exclusive license under the exclusive use contract of this case, the Plaintiff completed the registration of establishment of exclusive license with Daegu Metropolitan City and Gyeongbuk-do for the patent of this case from January 12, 2006 to January 11, 2009, and completed the registration of establishment of exclusive license with respect to the patent of this case.

2. Determination as to the claim against the defendant company

A. The plaintiff's ground for claim

(1) During the patent term of the instant patent, the Plaintiff entered into an exclusive license agreement with the Defendant Company to exercise the exclusive license for the instant patent in Daegu Metropolitan City and Gyeongbuk-do.

(2) In accordance with the instant exclusive use approval agreement, the Defendant Company violated the instant exclusive use approval agreement, such as having the Plaintiff carry out construction works using the instant patent in Daegu Metropolitan City and Gyeongbuk-do in the Daegu Metropolitan City (hereinafter “Seoul Metropolitan City and Gyeongbuk-do”), even though it was prohibited from engaging in business activities as described in Paragraph (a) of Paragraph (1) of the claim against the Plaintiff. Meanwhile, the Defendant Company should pay the Plaintiff the amount of profit accrued from the Defendant Company’s implementation of construction works to the Plaintiff, 969,680,000 won, or the amount of profit accrued from the infringement of the instant exclusive license regarding the patent, or the amount of loss therefrom, and thus, the Defendant Company should pay to the Plaintiff the amount of KRW 969,680,000 and delay damages therefrom.

(3) The Plaintiff had outstanding claim amounting to KRW 266,238,050, which was not refunded by the Defendant Company even before and after the conclusion of the instant exclusive use approval agreement. In the event that the amount is deducted from KRW 200,000,000 as stipulated in the instant exclusive use approval agreement, the Defendant Company shall pay to the Plaintiff the settlement payment amount of KRW 66,238,050 and delay damages therefor.

(4) Meanwhile, on March 31, 2005, the Plaintiff did not separately specify the interest on the Plaintiff, and lent KRW 200 million to the Plaintiff on May 10, 2005 (hereinafter “the instant loan”). Since the loan remains in an unsettlement state between the Plaintiff and the Defendant Company, the Defendant Company shall pay the Plaintiff a loan of KRW 200 million and its delay damages.

B. Determination on the scope of the Plaintiff’s exclusive license

The Plaintiff’s patent period from January 12, 2006 to January 11, 2009 with respect to the patent of this case was from January 12, 2006 to the registration of establishment of exclusive license with Daegu Metropolitan City and Gyeongbuk-do, and the area was completed with the registration of establishment of exclusive license with respect to the patent of this case as seen earlier, barring any other circumstance, the Plaintiff has exclusive license as determined in the registration of establishment with respect to the patent of this case.

The Defendant Company asserts that the purpose of the exclusive use approval agreement of this case is to grant an exclusive license to the Plaintiff, solely based on the Plaintiff’s efforts. According to the facts acknowledged earlier, it is recognized that “the patent technology of this case entirely based on the Plaintiff’s efforts and reflect the patent technology of this case in the design of construction works and limited to the unit construction works that the Plaintiff received by the Plaintiff.” On the other hand, Article 5(1)3 of the exclusive use approval agreement of this case provides that “All construction works within Daegu Metropolitan City and Gyeongbuk-do, in which the patent construction method of this case was reflected prior to the date of conclusion of the exclusive use approval agreement of this case, shall be entirely constructed by the Plaintiff.” However, as long as other restrictions other than those recognized above are not added to the Plaintiff’s exclusive license, it shall be deemed that the Plaintiff can exercise its right within the scope of the registered exclusive license after the establishment of the exclusive license, the Defendant Company’s assertion on the other premise is without merit.

C. Determination on the claim for prohibition of business activities, etc.

On the premise that the exclusive use approval agreement of this case is still valid, the Plaintiff is an exclusive licensee under the Patent Act or an exclusive licensee under the exclusive use approval agreement of this case and filed a claim against the Defendant Company for the prohibition of business activities, etc.

Although the period of the Plaintiff’s exclusive license expires, the exclusive license agreement of this case sets the approval period for the exclusive license of this case as 202, which is the term of the patent of this case.

However, unlike the period of approval for exclusive use stipulated in the exclusive use approval agreement of this case, as to whether the exclusive license agreement of this case is still effective, the Plaintiff completed the registration of the exclusive license of this case on January 11, 2009 with the maturity of exclusive license. Moreover, as seen earlier in the instant case, the Plaintiff filed a claim for settlement calculated by including the deposit subject to settlement on the premise that the contract for exclusive use of this case is terminated, as seen earlier. In light of the fact that the actual period of registration of exclusive license was set on January 11, 2009 and the purport of the entire argument of the Plaintiff in this case, the exclusive use approval agreement of this case was terminated after the lapse of January 11, 2009, the maturity of the exclusive license of this case with respect to the patent of this case.

As to this, the plaintiff asserted that the exclusive license for the patent of this case was registered differently from the approval period stipulated in the exclusive license agreement of this case because it was by deception of the defendant company, and therefore the approval of exclusive license of this case is still valid. However, it is not sufficient to recognize that the statement of evidence No. 26 alone was a deception of the defendant company. The plaintiff's assertion is without merit, since there is no

Therefore, on the premise that the exclusive use approval agreement of this case still remains valid, the prior plaintiff's claim for prohibition of business activities against the defendant company is without merit.

(d) Scope of damages caused by infringement on exclusive licenses;

We examine the scope of damage caused by the infringement of the plaintiff's exclusive license by the defendant company.

According to Gap evidence Nos. 5, 8, and 9 and the fact-finding results with respect to the time of stay at the court of first instance, according to the plaintiff's exclusive license registration period (from January 12, 2006 to January 11, 2009) concerning the patent of this case, defendant company's license is granted in Daegu Metropolitan City and Gyeongbuk-do area. ① New Jin comprehensive Construction is 82,000,000 won for construction contract (supply price) on February 5, 2007, the replacement construction of a bridge in the YY district in the Gun, ② the construction contract amount (supply price) on November 12, 2007, which is 2.2.25 billion won for a permanent national road with the construction contract amount (supply price) on November 12, 2007, ③ the construction contract amount (supply price) on December 12, 2007 to 11,501, the plaintiff asserted that the contract amount is 1005 billion won for a permanent road.

The above-mentioned (1), (2) and (3) all of the construction works are being executed by the plaintiff within the exclusive license period, and the construction works are executed by infringing the plaintiff's exclusive license.

With respect to the scope of its loss, the Plaintiff asserted that the Defendant Company had no evidence as to the amount of its profit, ① KRW 119,99,218 relating to the construction of the new comprehensive construction (i.e., value of KRW 820,00,000- KRW 634,400,782- KRW 85,600 per annum), ② KRW 446,331,370 relating to the construction of the large comprehensive construction (i.e., value of KRW 2,200,000- KRW 1,57,668,630- KRW 86,006,00 per each of the instant 176,00,000,000 won), ③ KRW 403,15,000,000, KRW 609, KRW 309,940, KRW 209, KRW 209, KRW 409,6305,209, KRW 3096,29400.

As such, the Plaintiff’s assertion of damages arising from the infringement of the exclusive license asserted by the Defendant Company cannot be accepted, and there is no other assertion or proof to presume the damages, the damages suffered by the Plaintiff in relation to the three construction works for which the Defendant Company granted the license shall be calculated in accordance with Article 128(5) of the Patent Act, but the Defendant Company agreed to receive 5% of the contract amount (supply price) awarded from the large-scale comprehensive construction on December 7, 2004, while granting a non-exclusive license to the large-scale comprehensive construction on December 7, 2004, as seen earlier. As such, in this case, the damages to the Plaintiff due to the infringement of the Defendant Company’s exclusive license are the sum calculated by multiplying the respective supply value by 5%.

Therefore, ① As to the construction of the new comprehensive construction, KRW 41,00,00 (=820,000,000 + 5%) as to the construction of the new comprehensive construction; ② as to the construction of the large comprehensive construction, KRW 110,00,00 (=2,200,000 + 5%) as to the construction of the large comprehensive construction; ③ as to the construction of the gold comprehensive construction, KRW 55,750,00 (=i.e., KRW 1,115,00,000 + 5%) as to the construction of the gold comprehensive construction; and accordingly, the Defendant Company is liable to compensate the Plaintiff for damages arising from the infringement of exclusive license + KRW 206,750,000 + KRW 41,000 + KRW 110,000 +5,750,000) as well as damages for delay.

E. Determination as to settlement and loan claims

(1) The Plaintiff asserts that the Plaintiff should receive KRW 66,238,050 from the Defendant Company, and additionally receive KRW 200 million from the Defendant Company on March 31, 2005, when the Plaintiff settled the deposit amount to be refunded to the Plaintiff, the outstanding amount of the construction project and the usage fee of the instant 8%, etc. in relation to the instant exclusive use approval agreement.

(2) First, we examine the Plaintiff’s claim for settlement of accounts.

As seen earlier, the deposit amount of the exclusive use approval agreement of this case is KRW 200 million, and the termination of the exclusive use approval agreement of this case upon the expiration of the contract term. As such, the Defendant Company is obligated to refund KRW 200 million to the Plaintiff the deposit amount of the exclusive use approval agreement of this case. In addition to the deposit amount of KRW 200 million, the Plaintiff asserted that there exists any more amount of the outstanding construction payment to be paid from the Defendant Company as stated in the attached Form “the outstanding construction payment of the Plaintiff’s claim”, but it is not sufficient to acknowledge the Plaintiff’s assertion merely with the statement of KRW 27-30 (including the number

On the other hand, the Plaintiff is obligated to pay the 8% usage fee of this case to the Defendant Company. Since the Defendant Company has not settled only after the approval of exclusive use contract of this case, the object to be deducted from the security deposit for exclusive use approval contract of this case is the amount equivalent to 8% usage fee of this case generated after the approval of exclusive use contract of this case.

Furthermore, in light of the purport of the entire argument in the statement in Gap evidence 29-7, 8, 9, 30-7, 8, and 9, 8 of this case's 8% usage fees to be deducted from the security deposit under the approval of exclusive use contract of this case, the fact that the 8% usage fees of this case occurred after the approval of exclusive use contract of this case was acknowledged as follows: ① supply price of 74,249,600 won in relation to the 3006 7,206 74,249,600 won in relation to the 3006 41,40,000 won in relation to the 2006 41,50,000 supply price (= supply price of 517,500,000 x 8%) in relation to the 206 209 209 3.

Therefore, the Defendant Company is obligated to pay to the Plaintiff the sum of KRW 64,954,037 [the sum of KRW 200,000,000 ( KRW 74,249,600 + KRW 41,400,00 + KRW 19,396,363]; and

(3) The following shall be deemed to apply to loan claims:

The fact that the Plaintiff loaned KRW 200 million to the Defendant Company on March 31, 2005 that the maturity was set on May 10, 2005 is no dispute between the parties. Accordingly, the Defendant Company asserted that the Plaintiff’s loan claim was settled and extinguished at the time when the instant exclusive use approval agreement was concluded, and thus, it should be viewed as to whether it was settled.

On May 10, 2005, the Plaintiff’s repayment period of the Plaintiff’s loan claim against the Defendant Company was as seen earlier. Meanwhile, according to the facts acknowledged earlier, while the Plaintiff used the instant patent from around 2003 to the Defendant Company with the consent of the Defendant Company and paid 5% of the supply price of the construction contract with the patent fee, the Plaintiff entered into the instant exclusive use agreement with the Defendant Company on September 20, 2005 after the lapse of four months from the due date of the loan claim, and the Plaintiff lent KRW 500 million to the Defendant Company and Dongyang SPS, and entered into the instant exclusive use approval agreement on September 21, 2005, after consultation on the settlement of the claim and obligation related to the instant agreement (1.d., Jan. 21, 2005). As a result, the Plaintiff fulfilled the instant exclusive use agreement, thereby establishing the instant patent-related exclusive license.

In light of the above circumstances, the Plaintiff and the Defendant Company, which had been in the relationship of settling the existing bonds and obligations at any time while engaging in continuous transactions, seems to have completed the settlement of the loan as of March 31, 2005 when the period of repayment had already expired, and there is no provision on the loan as of March 31, 2005 in the agreement of this case and the exclusive use approval agreement of this case in addition, there is no provision on the loan as of March 31, 2005. In addition, considering that the Plaintiff’s claim of KRW 200 million was asserted only after the closure decision of the pleading as of October 6, 2009 was made at the first instance, the loan claim as of March 31, 2005 shall be deemed to have already been extinguished in the course of repayment or settlement of the bonds and obligations by the Plaintiff and the Defendant Company.

Therefore, the Plaintiff’s claim for loans to the Defendant Company is without merit.

3. Determination as to the claim against Defendant 2

The plaintiff asserted that the defendant 2 infringed the plaintiff's exclusive license on the patent of this case with the defendant company, and claimed that the defendant 2 pay 969,680,000 won and damages for delay as a result of the infringement on the exclusive license jointly with the defendant company.

However, the reason why the Plaintiff, the exclusive licensee of the instant patent, claimed infringement of the exclusive license, was that the Plaintiff used the instant patent in Daegu Metropolitan City/Seoul Metropolitan City/Gyeong-do where the exclusive license has been effective against the Daegu Metropolitan City/Gyeong-do Construction. According to the record of evidence Nos. 5, 8, and 9 and the fact-finding on the time of resident residence in the first instance trial, all of these companies used the instant patent under the contract with the Defendant company, and even though Defendant 2 had engaged in the said contract as the representative director of the Defendant company, it cannot be deemed that the act was represented by the Defendant company, and it cannot be deemed that Defendant 2 was an act infringing the Plaintiff’s exclusive license as an individual. Thus, the Plaintiff’s claim against Defendant 2 did not have merit.

4. Conclusion

Therefore, the defendant company is obligated to pay to the plaintiff 271,704,037 won (206,750,000 won for damages caused by the infringement of exclusive license + 64,954,037 won for damages) and the above amount. The plaintiff's claim against the defendant company shall be accepted within the extent recognized above, and the remaining claim against the defendant 2 shall be dismissed for the reason that the plaintiff's claim against the defendant is without merit, and the plaintiff's claim against the defendant company shall be dismissed for the reasons that it is reasonable to dispute about the existence or scope of the duty of performance from March 20, 208 to March 31, 2010, which is the date of the decision of this case, which is the date of the decision of this case where it is deemed reasonable to dispute about the existence or scope of the duty of performance, and 5% per annum from the next day to the date of full payment. The plaintiff's claim against the defendant company shall be dismissed for the reason that the plaintiff's claim against the defendant 2 and the remaining part of the defendant's appeal shall be dismissed.

[Attachment]

Judges Lee Ki-taik (Presiding Judge)