[거절사정][공1989.10.1.(857),1362]
The purport of Articles 1(2) and 1(3) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 12199 of July 1, 1987)
The purport of Article 1(2) and (3) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 12199, Jul. 1, 1987) cannot be said to have been deposited at the time of filing an application for a new 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 characteristics of the micro-organism existing in the extreme world, and therefore, the new micro-organism may not be used for the industry unless it is guaranteed that the micro-organism can be used again: Provided, That if the micro-organism, the existence of which is confirmed and easily obtained, can be changed in such a way that can be easily implemented by a person with ordinary knowledge in the field of the technology to which the micro-organism belongs, and it is no longer necessary to deposit it.
Articles 1(2) and 1(3) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 12199 of July 1, 1987)
Supreme Court Decision 87Hu45 Delivered on October 13, 1987
Seoul U.S.
The Commissioner of the Korean Intellectual Property Office
Korean Intellectual Property Office Decision No. 340, Nov. 30, 1987
The appeal is dismissed.
The costs of appeal shall be assessed against the applicant.
We examine the grounds of appeal.
According to Article 1(2) and (3) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 12199, Jul. 1, 1987), a person who intends to file a patent application for an invention using a micro-organism shall deposit the micro-organism and attach a document evidencing the deposit to the application, but if the micro-organism can be easily obtained by a person with ordinary knowledge in the world to which the invention pertains, he may not deposit it. The purport of the above provision is that the micro-organism can not be used for the industry unless it is confirmed that the actual existence of the micro-organism exists in the nature of the micro-organism existing in the world to which the invention belongs and it is ensured that it can be obtained again, and if the micro-organism can be created by a person with ordinary knowledge in the technology field to which the micro-organism can be confirmed and easily obtained, it shall be deemed that the person who has ordinary knowledge belongs to 187 after its adjudication (see, e.g., Decision 1987).
According to the reasoning of the original decision and the record, the MaW 4768-8, used in the original invention, can be seen as a new micro-organism different from the MaW 4768, which is different from the MaW 4768, and it is not recognized that the micro-organism can be easily obtained if the micro-organism is a party, and the method of obtaining the fluoral change by processing the fluoral change is also stated in the specification of the original invention. However, it cannot be deemed that the fluoral change caused genetic change by radiation or chemical drugs cannot be easily obtained and reproduced by the party. Thus, the fluoral change in the original invention is required to be deposited at the time of its application.
In the above view, although the original decision was filed on December 1, 1983, the micro-organism deposited with the Korea Advanced Institute of Science and Technology on February 14, 1985, which was later filed, it is just to determine that the micro-organism was deposited with the Korea Advanced Institute of Science and Technology, and that it cannot be deemed to have been completed as it was in violation of the provisions of the above Act, and there is no error in the misapprehension of legal principles as pointed out.
Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)