[권리범위확인(특)][공2002.10.1.(163),2245]
[1] Criteria to determine whether the patent invention is equivalent to the (Ga) invention
[2] The case holding that although the composition of the (a) invention is publicly known, it cannot be viewed that the composition of the (a) invention is identical to the patented invention because it does not have an equivalent relationship with the patented invention for the reason that it is a technology for which the composition of the (a) invention is publicly known, it cannot be viewed that the composition of the (a) invention
[1] In order for the invention to be deemed within the scope of a patent right of the patented invention, an organic combined relationship between each element and the element of the patented invention must be included in the (a) invention. However, even if the (a) invention's substitution or modification of the elements of the patented invention is made, the solution principle of the task is identical in both inventions, even if it is based on such substitution, if it is obvious that a person (the party) with ordinary knowledge in the art to which the invention pertains can easily think that the (a) invention's substitution is made within the scope of a patent right, unless there are special circumstances such as the (a) invention's substitution or modification of the elements of the (a) invention's substitution or modification, and if it is obvious that the (a) invention's substitution is equivalent to the elements corresponding to the patented invention's claim, it is still within the scope of a patent right.
[2] The case holding that although the composition of the (A) invention is publicly known, it cannot be viewed that the composition of the (a) invention is identical to the patented invention because it is not equivalent to the patented invention, it cannot be viewed that the effects of the (a) invention are substantially identical to the patented invention, and thus the two are not equivalent to the patented invention
[1] Article 57 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990), Article 135 of the Patent Act / [2] Article 57 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990), Article 135 of the Patent Act
[1] Supreme Court Decision 97Hu2200 delivered on July 28, 200 (Gong2000Ha, 1954) Supreme Court Decision 98Hu836 delivered on June 15, 2001 (Gong2001Ha, 1651) Supreme Court Decision 98Hu522 delivered on August 21, 2001 (Gong2001Ha, 210), Supreme Court Decision 2001Hu393 Delivered on September 7, 2001 (Gong2001Ha, 2197)
Plaintiff
Defendant (Patent Attorney Hwang Young-chul, Counsel for defendant-appellant)
Patent Court Decision 99Heo8684 delivered on November 3, 2000
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
According to the reasoning of the judgment below, in preparing for the invention of this case (patent registration number omitted) with the patent invention of this case (patent registration number omitted) and (Ga) with the manufacturing device of the site as "a manufacturing device of the above site", the court below determined, on the grounds as stated in its reasoning, that (a) the invention of this case is identical with or equal to the remaining composition of the patented invention (patent registration number omitted) with the exception of "a transparent film (12') attached to both sides of the site where the patented invention of this case is destroyed by a specific intervals (1) (11's article) and (10's article 10's (10'), while (a) the invention of this case is divided by the film transfer roller (11's article) and the film 10's article (10''), which are installed with the specific description of the patented invention of this case with the exception of "a transparent film attached to both sides of the site", and thus, it does not have the same effect as the above (111''t have the same effect as the above amendment element of the invention.
(a)In order for the invention to be deemed within the scope of the right of the patented invention, the organic combination relationship between the respective elements and the elements of the patented invention must be included in the (a) invention. However, even if the elements of the (a) invention are exchanged or modified, the solution principle of the task is identical in both inventions; even if they are exchanged, if they are able to achieve the same objective in the patented invention, and show the same effect in the patented invention, and if it is so obvious that a person (party) with ordinary knowledge in the technical field to which the invention pertains can easily think of the fact that the (a) invention falls under the technology that could have been easily made by the party from the technology already known or publicly known at the time of the application of the patented invention, or the elements of the (a) invention exchanged through the procedure for the application of the patented invention are excluded from the scope of the right of the patented invention, it shall be deemed that the elements of the (a) invention correspond to the patented invention and thus, (b) invention still belongs to the scope of the right of the patented invention.
In light of the above legal principles and records, it is not appropriate for the court below to determine as if the composition of the (A) invention is not in an equivalent relationship with the patented invention of this case, but it is just to determine as if the (a) invention is not in an equal relationship because it does not indicate the same effect as the patented invention of this case, and as a result, it does not affect the conclusion that the (a) invention does not fall within the scope of the right of the patented invention of this case, and there is no error of incomplete deliberation or omission of judgment that affected the conclusion of the judgment, as otherwise alleged in the ground of appeal.
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 on the bench.
Justices Lee Jin-hun (Presiding Justice)