[권리범위확인(특)][공2003.2.15.(172),543]
[1] Whether the scope of a right can be denied on the ground that the patent invention was publicly announced in the so-called selective invention, even if the subordinate concept constituting the patent invention does not specifically commence in the preceding invention (negative)
[2] In a case where an invention compared to a patented invention is made only with a publicly known technology, or where a party can easily implement it from a publicly known technology, whether it falls under the scope of the right to the patented invention (negative)
[3] The case holding that the (A) invention does not fall under the scope of the right to the patented invention without any need to comparison with the patented invention since the (a) invention can easily be made from the publicly known art
[1] Even if it is difficult to recognize that the elements of an invention prior to or an announcement are stated as a superior concept and that the patent consisting solely of a subordinate concept included in the above upper concept have a significant effect unforeseeable, if a person with ordinary knowledge in the field of technology can easily make an invention from an known invention, if the subordinate concept constituting the patent invention is not specifically commenced in the preceding invention, it cannot be deemed as having a identity with the invention publicly known prior to the application for the patent invention (limited to a new invention), in principle, unless the patent is invalidated through the invalidation trial procedure, the scope of the right cannot be denied in other proceedings.
[2] In determining whether a certain invention falls under the scope of the right to the patented invention, if the invention compared to the patented invention is made only with the publicly known technology, or if a person with ordinary knowledge in the art can easily make an invention from the publicly known technology, the invention does not fall under the scope of the right to the patented invention without any need to comparison with
[3] The case holding that the (A) invention does not fall under the scope of the right to the patented invention without any need to prepare for the patented invention since the (a) invention can easily be made from the known art
[1] Articles 29(2) and 135(1) of the Patent Act / [2] Articles 29(2) and 135(1) of the Patent Act / [3] Articles 29(2) and 135(1) of the Patent Act
Dong Young-gu Co., Ltd. (Attorney Choi Jong-soo et al., Counsel for the defendant-appellant)
Defendant 1 and one other
Patent Court Decision 200Heo4633 delivered on June 22, 2001
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. According to the reasoning of the judgment below, the court below determined as follows: (a) comparing the plaintiff's patented invention of this case (patent number omitted) with the contents indicated in the Kavina Kavina product distributed in Korea prior to the application of the patented invention of this case (hereinafter referred to as "human-use invention"), and both inventions are feed additives acquired by adding the stimul acid to the stimulic acid at the end of the stimulative stimulsing stimuls, and the ratio of carbon subdivision and stimuls is the same in the same category; (b) carbon subdivisions derived from the stimulsorum stimuls, among the composition of the patented invention of this case, derived from the stimulsing stimulsa among the composition of the patented invention of this case, are included in the stimuls of the cited invention; (c) so, the patented invention of this case can not be seen as new, compared to the so-called selective invention expressing the upper concept of the cited invention.
However, even if it is difficult to recognize that the elements of an invention prior to or an announcement are stated as a superior concept and that the patented invention consisting solely of a subordinate concept included in the above superior concept have a significant effect unforeseeable, if a person with ordinary knowledge in the art can easily make an invention from the known invention, if the subordinate concept constituting the patented invention is not specifically commenced in the preceding invention, it cannot be deemed as having a identity with the publicly known invention prior to the application for the patented invention (limited to an invention with a new nature), in principle, unless the patent is invalidated through the invalidation trial procedure, the scope of the right cannot be denied in other procedures.
According to the records and the above legal principles, even though the quoted invention does not specifically commence the "crop subdivision for coconuts acquired by heating coconuts or hycoconuts acquired by cutting down hycocon trees" or "hycocons acquired by cutting down hycocons" which are composed of the instant patent invention, newness is denied if the court below does not have an obvious effect on the invention of the same kind as the instant patent invention, and denying the scope of the right to the instant patent invention itself is erroneous in the misapprehension of legal principles as to the scope of the right to the patent invention, and the grounds for appeal pointing this out
2. However, in determining whether a certain invention falls under the scope of the right to the patented invention, if the invention compared to the patented invention is made only with the publicly known technology, or if a person with ordinary knowledge in the art can easily make an invention from the publicly known technology, it does not fall under the scope of the right to the patented invention without any need to comparison with the patented invention (see Supreme Court Decisions 9Hu710, Oct. 30, 2001; 99Hu62, Dec. 11, 2001, etc.).
In this case, the Defendant’s (A) invention composed of the Defendant’s (i) invention, such as the feed additives that is obtained by inging 20% of the primary amount of 20% of the raw materials obtained by melting active leaves for the 80% of the shot powder which was treated as each of the shot powder. The shotum is the active carbon that has been treated as activated in high temperature, and the shotum amount is limited to the extracted raw materials. According to the records, prior to the application of the patent invention in this case, it was widely known that it was widely known that the shotum amount was added to active carbon and used as supplementary feed (this is the degree that the shotum substance is listed in the auxiliary feed in force prior to the application of the patent invention in this case, and that the shotum substance is easily known in the composition of the shotum substance, and that the shotum substance is the same as the shotum substance extracted from each of the above shotum substance.
Therefore, (A) The lower court that concluded that the instant patent invention does not fall under the scope of the right to the instant patent invention, without any need to prepare for the instant patent invention, is eventually justifiable.
3. 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 on the bench.
Justices Song Jin-hun (Presiding Justice)