With respect to an invention using a micro-organism, unless the actual existence of the micro-organism is confirmed and it is guaranteed that it may be obtained again in view of the nature of the micro-organism existing in the world of the world, it shall not be deemed that the invention can be used for the industry. Thus, Article 1(2) of the Enforcement Decree of the Patent Act requires a person who desires to file a patent application for the invention using the micro-organism to deposit it with an organization designated by the Commissioner of the Korean Intellectual Property Office and append a document certifying the deposit thereof to an application. Article 1(3) of the Enforcement Decree of the Patent Act provides that if the micro-organism can be easily obtained by a person who has ordinary knowledge in the technology of the invention, the deposit may not be made, in light of the above purport of the deposit system of the micro-organism. However, even if a new micro-organism is recognized as a new micro-organism, if there is a need to deposit it with the person who has ordinary knowledge in the technology field of the micro-organism easily and easily obtained, it shall be deemed that the micro-organism belongs to the invention.

According to the reasoning of the judgment of the court below, the court below held that the main invention of this case is about the manufacturing method of 5'Guide acid, and MaW-643, which is a micro-organism used in the invention of this case, is related to the manufacturing method of 5'Guide acid, and MW-643, which is related to the micro-organism of this case, is about 5'W-643, which has the characteristics of converting 5's high concentration into 5'chloroethyl acid directly into 5-Guide acid, and 5'Guide acid, 5'or 643, which is the main invention of this case, into B-643, Br2, which is related to B-643, which is a micro-organism used in the invention of this case, can not obtain a new deposit of Ma-1672, which has the characteristics of 2's patent deposit before 200,000, 366-10,000, 364,000.

However, in light of the above legal principles, since the above MW-1643, which is a micro-organism used in the original invention, is written in detail to obtain a change from MW-1672, a friendly MaW-6643, the above MW-643, even if the new micro-organism is a friendly MaW-1672, first, in light of the above legal principles, whether the existence of the friendly MaW-1672 is confirmed and easily obtained, second, whether the above MW-1672 is treated as a micro-organism, and second, whether the above MaW-643 is created clearly after the change is made according to the method indicated in the main specification, third, whether the method of processing the above change can be easily implemented by a person with ordinary knowledge in the technical field, and it can be concluded that there is no need for the deposit, and the court below did not err in the misapprehension of legal principles as to the remaining patent deposit of the MW-1643, which affected the conclusion of the final appeal.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the original decision is reversed, and the case is remanded to the Korean Intellectual Property Tribunal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee B-soo (Presiding Justice)