2. The Defendants shall pay to each Plaintiff 7 million won with 5% interest per annum from February 28, 2010 to August 11, 2011, and 20% interest per annum from the next day to the day of complete payment.

3. The plaintiff's remaining claims against the defendants are dismissed.

4. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

5. Paragraph 2 can be provisionally executed.

A. The Plaintiff developed a variety with the name “scambling” (hereinafter “instant protected variety”) for the purpose of fostering and researching seeds, producing and selling seedlings, etc., and filed an application with the National Seed Service on July 5, 2001. On July 19, 2004, the Plaintiff registered the establishment of a variety protection right from national seed resources pursuant to the Seed Industry Act.

B. The Defendants, as the operators of the ○○○ Agricultural Seed Seeds and Seedlings, sold the seeds of water-stuffing in the name of “Bedi (VIP)” or “Bedi (VIP),” from around 2007, to a large number of seedlings and farmers. From January 2010, the Defendants sold and sold the seeds of water-stuffing in the name of “Bedi (Madi (Madi)” (hereinafter the Defendants sold and sold after around 207 all the kinds listed in the attached list that the Defendants sold after 207 as above, are “the Defendant’s plant variety”).

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, 2, 9, Gap evidence 12 through 15, Gap evidence 17, Gap evidence 21, the purport of the whole pleadings

2. Determination

A. Part of the prohibition claim

(1) Determination of the cause of the claim

A variety protection right holder shall have an exclusive right to exploit the protected variety commercially and industrially, and the effect of a variety protection right thereby shall also apply to a variety which is not clearly distinguishable from the protected variety pursuant to Article 14 of the Seed Industry Act.

그러므로 피고들 실시 품종이 이 사건 보호품종과 구별되지 아니하는 품종인가에 관하여 보건대, 갑 제22, 23, 28호증의 각 기재(가지번호 포함)에 변론 전체의 취지를 종합하면, ① 원고가 피고들을 고소하여 개시된 관련 형사사건( 수원지방법원 2009고단1035호 )에서, 감정기관인 국립종자원은 원고와 피고들이 각 4종씩 제출한 이 사건 보호품종 및 피고들 실시 품종의 보관 종자와 시판 종자, 피고 1이 판매하다가 경찰에 압수된 피고들 실시 품종 종자, 국립종자원이 보관하고 있는 이 사건 보호품종 종자 및 피고 2가 종전에 “이른부자꿀”이라는 명칭으로 생산판매신고를 한 수박 품종 종자의 11종에 관하여 포장재배시험(이하 ‘이 사건 재배시험’이라 한다)을 실시하였는데, 그 결과 국립종자원이 보관하고 있는 피고 2의 생산판매신고 품종 종자를 제외한 나머지 10종의 수박 종자 사이에 ㉠ 2000년 제정된 작물별 특성조사요령(수박, 이하 ‘구 특성조사요령’이라 한다) 소정의 59개 항목의 특성 중 ‘유묘: 떡잎의 크기’, ‘유묘: 배축길이’, ‘식물체: 주지의 길이’, ‘잎몸: 길이’, ‘잎몸: 너비’, ‘잎몸: 길이/너비 비율’, ‘잎자루: 길이’, ‘씨방: 크기’, ‘과실: 과실자루 길이’, ‘과실: 배꼽의 크기’, ‘과실: 종자 수’의 11개 항목에서 1계급의 차이가 나는 경우가 있었으나, 나머지 항목에서는 모두 동일한 계급값인 것으로 나타났고, ㉡ 구 특성조사요령과 중복되지 아니하는 2008년 개정 작물별 특성조사요령 소정의 11개 항목의 특성 중 ‘식물체: 마디와 마디 사이의 길이’, ‘잎자루: 길이’의 2개 항목에서 1계급의 차이가 나는 경우가 있었으나, 나머지 항목에서는 모두 동일한 계급값인 것으로 나타난 사실, ② 유전자 분석검사(이하 ‘이 사건 유전자 분석검사’라 한다) 결과 위 10종의 수박 종자 사이의 유전적 유사도가 100%인 것으로 나타난 사실, ③ 이 사건 재배시험 결과 위와 같이 1계급의 차이가 있는 것으로 나타난 항목들은 모두 양적 특성으로서, 구별성이 인정되기 위하여는 최소 2계급의 차이가 존재하여야 하는 사실을 인정할 수 있고, 위 인정 사실에 의하면, 피고들 실시 품종은 이 사건 보호품종과 명확하게 구별되지 아니하는 품종이라 할 것이다.

Therefore, the Defendants’ act of running a variety without distinction constitutes infringement of the plant variety right of this case, and the Plaintiff has the right to seek prohibition against the Defendants from the infringement pursuant to Article 84(1) of the Seed Industry Act. Thus, the Defendants shall not engage in the propagation, production, preparation, transfer, lease, or exportation of the seeds listed in the separate sheet, which is the Defendants’ plant variety.

(2) Judgment on the defendants' assertion

(A) The Defendants asserted to the effect that: (a) the cultivation test of the instant plant variety was conducted in the following ways: (a) the cultivation test of the instant plant variety: (i) the cultivation test of the instant plant variety was conducted in a fluorous manner; (b) the first rock was laid down in an early fashion to the extent that the first rock was opened; (c) the weight of the protected plant variety of the instant plant variety and the designated plant variety of the Defendants did not comply with the cultivation conditions, such as not complying with the temperature control in the fluor; and (d) the weight of the instant plant variety and the designated plant variety of the instant plant variety, to the extent that the weight of the instant plant variety, which falls within the 4 to 5 kilograms (weight not less than 8 kilograms), was limited to the degree that the weight of the instant plant variety and the designated plant variety of the instant plant variety, and (b) the difference between the protected plant variety of the instant plant variety and the designated plant variety of the Defendants, and (d) the appraiser cultivated the seeds of the instant plant without permission.

In full view of the purport of the pleadings as a whole, Gap 22, 35, 36 evidence, Eul 10, 17, and 21 evidence (including paper numbers) at the time of the cultivation test of this case: (a) the protected variety of this case and the protected variety of the defendants were sold on March 26, 2010, after the first rock was opened on or before May 19, 2010; (b) the protected variety of this case and the protected variety of this case, which were seeds at the time of the cultivation test of this case, were cut on or before June 15, 201; (c) the seeds of this case and the protected variety of this case, which were caught at the time of the cultivation test of this case, were 49.8 %); (d) the seeds of the protected variety of this case and the seeds of the protected variety of this case can not be deemed to have been preserved at the time of the cultivation test of the protected variety of this case on or before the 3rd seed of this case.

However, considering the following circumstances, i.e., methods of growing seeds of the instant protected variety and the Defendants’ exploitation of the instant protected variety are deemed as successful raising, 35, 36, 37-1, 81-2, 10, 22, and 36-3: (i) the overall purpose of pleadings, i.e., methods of growing seeds of the instant protected variety 4 months from November to December 12, 197, based on the fact that there were no differences in the value of the instant protected variety 20-3 months from the date of the instant cultivation test; (ii) the number of seeds of the instant protected variety and the Defendants’ exploitation of the instant protected variety can not be deemed as having changed compared to the value of the seeds of the instant variety 20-3 months from the date of the instant cultivation test; and (iii) the difference in the value of the seeds of the instant protected variety 4 years from the date of the instant cultivation test.

Therefore, the above assertion by the defendants is without merit.

(B) In addition, in order to determine the distinction between the protected plant variety of this case and the designated plant variety of the Defendants, the Defendants asserted that the method of applying the rank value used in the cultivation test of this case is not appropriate, and that the measurement value of the cultivation test of this case should be

It is insufficient to recognize that the entries of evidence Nos. 23, 30, 31 alone are sufficient to examine the measurement value of the cultivation test of this case by a statistical method, and there is no other evidence to prove otherwise, and thus, the above assertion is not acceptable.

(C) The Defendants asserted to the effect that the method of genetic analysis is not authorized by the method of determining the distinguishingness of a variety, and that the method of genetic analysis is more appropriate than the homogeneity of a variety, and that the result of the appraisal taking into account the genetic analysis should be rejected.

In light of the following circumstances, even if gene analysis tests are not used as a method of testing for the purpose of general distinction, as alleged by the Defendants, if reliability is acknowledged in light of the degree of accumulation of data used as the basis of the prosecutor, the implementation of the method of testing, etc., it cannot be said that it would be improper to use it as an auxiliary material for the determination of distinction. However, in view of the fact that a gene profiling database for at least 250 species of floodbling and circulation in the Republic of Korea on November 2009 is constructed and its credibility can be recognized, it shall not be excluded from the aforementioned appraisal results by taking into account the following circumstances:

Therefore, the above assertion by the defendants is without merit.

B. Claim for damages

(1) Establishment of liability for damages

A variety protection right holder may claim damages against a person who has intentionally or negligently infringed his/her right, and a person who has infringed another person's variety protection right or exclusive license is presumed to have been negligent in such infringement (Articles 86 (1) and 87 of the Seed Industry Act). Since the Defendants sold the seeds of a variety that the Defendants conducted, as seen earlier, the Defendants infringed the Plaintiff's variety protection right, and the Defendants' negligence is presumed to have been presumed, the Defendants are liable to compensate the Plaintiff for damages caused by the infringement.

(2) Scope of damages

(A) Calculation Criteria

A variety protection right holder may pay an amount calculated by multiplying the quantity of goods transferred by the holder of the variety protection right by the profit per unit of the goods that the holder of the variety protection right could have sold in the absence of said infringement (Article 86(2) of the Seed Industry Act and Article 128(1) of the Patent Act). The amount of profit per unit refers to the amount calculated by subtracting the cost per unit of goods that the holder of the variety protection right could have sold in the absence of said infringement from the sales price of the goods per unit of the variety protection right holder’s goods that would have been anticipated to have been additionally paid for the sale of the increased amount of goods. In addition, the court may acknowledge damages in a lawsuit as to infringement of the variety protection right, but it is extremely difficult to prove the facts necessary to prove the amount of damages due to its nature, based on the overall purport of pleadings and the result of examination of evidence (Article 86(2) of the Seed Industry Act and Article 128(5) of the Patent

(B) Whether the amount of damages under Article 86(2) of the Seed Industry Act and Article 128(1) of the Patent Act is calculated

The Plaintiff asserts that the total sales volume from June 1, 2009 to February 28, 201 (from June 1, 2008 to February 2009) to February 201 (from June 1, 2010 to February 28, 201) due to the Defendants’ infringement has decreased by 9,390,000 in comparison with sales volume in the year 2008 (from June 1, 2007 to February 28, 2008) in which no infringement has occurred. The Defendants’ infringement was deemed to have transferred seeds. The Plaintiff claimed that the amount of the Plaintiff’s profit per seed’s sale should be considered to have been KRW 200 won [the Plaintiff’s profit per seed breeding KRW 200 - (the production cost + KRW 1.81 won + import cost + KRW 0.11 won + the production cost of KRW 0.12,000 + the domestic amount of KRW 360,050];

However, only the evidence Nos. 12 through 17 and evidence Nos. 46 through 79 (including paper numbers) can not be recognized as the transfer quantity of the seeds used by the Defendants. Moreover, it cannot be recognized that the Plaintiff’s profit per seed establishment is KRW 197.27, and thus, the amount of damages cannot be calculated in accordance with Article 128(1) of the Patent Act.

(C) Calculation of damages under Article 86(2) of the Seed Industry Act and Article 128(5) of the Patent Act

Therefore, in this case, since it is extremely difficult to prove facts necessary to prove the amount of damages, even though the occurrence of damages is recognized, in view of its nature, the amount of damages shall be calculated in accordance with Article 128(5) of the Patent Act applied mutatis mutandis under Article 86(2) of the Seed Industry Act.

In full view of the purport of the entire pleadings in Gap evidence Nos. 9, 16, 17, 21, 44, 45, and Eul evidence Nos. 15 (including paper numbers), the sales volume of the plaintiff's seeds of the protected plant variety of this case in 2006 shall be 23,875,800, 25,991, 200, 208 sales volume of the seeds of this case in 2008, 30,037,200. The sales volume of the protected plant variety of this case in 209 was 29,196,60, 2010, 24,829, 00, 2011, 201, 201, 201, 200, 200, 201, 20, 200, 30, 200, 20, 20, 201, 3 seeds of this case.

In addition, taking into account the fact that a variety used by the Defendants has been known to the market after the lapse of at least several months from the date of infringing the Defendants’ infringement, the Defendants’ infringement appears to have contributed to the reduction in the sale of seeds in full due to the Plaintiff’s act of infringing upon rights, the Plaintiff’s protected variety in this case was under a good evaluation from gambling farmers, and was in a firm position in the swimming seed market, such as taking up a high market share in domestic swimming seeds, the time and expenses are required for the development of a new variety, and the annual trend of change in the area of swimming cultivation, etc., it is reasonable to determine the Plaintiff’s amount of damages as KRW 700,000,000, considering the following factors:

Therefore, the Defendants are obligated to pay to each of the Plaintiff the amount of KRW 700,000 and damages for delay at each rate of KRW 20% per annum under the Civil Act from February 28, 2010, which is the date of the completion of sale of the seeds of the protected variety of this case in 2011 to August 11, 201, which is deemed reasonable for the Defendants to dispute on the existence or scope of the obligation to perform, as sought by the Plaintiff.

C. Part of the indirect compulsory performance claim

The Plaintiff seeks to order the payment of the amount of KRW 1,00,000 per day of the violation in the event that the Defendants violated the duty of omission under paragraph (1) of this Article.

However, even after the judgment of this case became final and conclusive, in this case where there is no evidence to prove that it is difficult to guarantee the effectiveness of enforcement without ordering the probability or indirect compulsory performance that the Defendants would violate the above duty of omission within a short period of time, it is not necessary to order an indirect compulsory performance in advance in preparation for the Defendants’ non-performance of such duty. Thus, the Plaintiff’

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] List: omitted

Judges Kim Jong-young (Presiding Judge)