[취소결정(특)][집56(1)특,401;공2008하,1087]
[1] The time when the correction becomes final and conclusive where a correction is requested in a patent invalidation trial or an opposition procedure
[2] Where a patent holder filed a complaint against a decision of revocation by the board of examiners after the board of examiners recognized correction in the procedure for filing an objection, the case holding that it is justifiable that the board of examiners remanded the case to have given the patentee an opportunity to present his/her opinion on correction by re-examination of the request for correction and made a decision not to recognize correction
[1] Where a request for correction is made in a patent invalidation trial procedure or a patent objection procedure, whether to recognize a correction shall be examined together with a decision-making procedure on the invalidation trial procedure or objection. Thus, unlike a request for an independent trial for correction, it shall be determined at the time the decision of an invalidation trial becomes final and conclusive
[2] The case holding that in a case where a patent holder filed an appeal against a decision to revoke a patent by the board of examiners after the board of examiners recognized correction in the procedure for filing an appeal against a decision to revoke a patent by the board of examiners, unless the decision to revoke the patent has become final and conclusive, the only part of the correction cannot be deemed to have become final and conclusive independently, and thus, it is justifiable for the board of examiners to review the appeal against the request for correction and to grant the patent holder
[1] Articles 69 (current Deletion), 77 (current Deletion), and 136 of the former Patent Act (amended by Act No. 641 of Feb. 3, 2001) / [2] Articles 69 (current Deletion) and 77 (current Deletion) of the former Patent Act (amended by Act No. 6411 of Feb. 3, 2001)
Dpia Holdings Co., Ltd. (formerly: Dpia Co., Ltd.) (Patent Attorney Park Young-soo, Counsel for the defendant-appellant)
The Commissioner of the Korean Intellectual Property Office
Patent Court Decision 2005Heo8739 Decided September 1, 2006
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. Regarding ground of appeal No. 1
Where a request for correction is made in a patent invalidation trial or a patent objection procedure, whether to recognize a correction is examined together with a decision-making procedure on the invalidation trial or objection. Thus, unlike a request for an independent trial for correction, it shall be deemed that the decision of an invalidation trial becomes final and conclusive together with a decision on the objection,
According to the facts and records duly admitted by the court below, if the plaintiff's decision to revoke the correction of the patented invention of this case (patent number omitted) is 10 or more, the patent establishment registration was made in the name of the defendant on December 12, 1998 (the plaintiff was changed to September 4, 200; hereinafter referred to as "the plaintiff"), and the plaintiff's objection against the patented invention of this case (hereinafter referred to as "the objection of this case") was filed on June 30, 199 by the Patent Tribunal's decision to revoke the correction request of this case (the Patent Tribunal's decision to revoke the correction request of this case 1 or 200) on January 15, 200, the examiner's decision to revoke the plaintiff's decision to revoke the correction request of this case (the Patent Tribunal's decision to revoke the correction request of this case) on the ground that the examiner's decision to revoke the correction request of this case 2 or 30 (the Patent Tribunal's decision to revoke the correction request of this case).
Therefore, it is just that the board of examiners to which the case of objection was remanded has been tried again, and it is judged that the correction of this case was unlawful, giving the plaintiff an opportunity to present his opinion on correction, and it cannot be said that there is any error in the judgment below. Although it is somewhat inappropriate in the reasoning of the judgment below, it is just in the conclusion that there is no error in the misapprehension of legal principles as to the correction in the procedure of objection as otherwise alleged in the ground of appeal.
2. Regarding ground of appeal No. 2
Examining the reasoning of the judgment below in light of the records, the court below determined that the nonobviousness of the patented invention of this case, which was corrected for correction, is not recognized even in the patented invention of this case with wide range of claims, unless the patented invention of this case is non-obviousness, and there is no error of law such as misunderstanding of legal principles as to the determination of inventive step or incomplete hearing, as alleged in the ground of appeal.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Si-hwan (Presiding Justice)