[2] In a trial for correction or a lawsuit for revocation of a trial for correction, where a claimant has not given an opportunity to submit his/her written opinion to the claimant, whether a trial decision dismissing a petition for trial for correction or a petition for revocation of a trial decision can be dismissed (negative)

[2] Article 136(6) of the Patent Act, which applies mutatis mutandis under Article 33 of the Utility Model Act, provides a claimant with an opportunity to submit his/her written opinion in a trial for correction, thereby ensuring the propriety of examination of a request for a correction trial and maintaining the credibility of the examination system, is a compulsory provision due to the demand of the public interest. Therefore, it is unlawful to render a trial ruling dismissing a request for a trial for correction on the ground that the claimant did not provide the claimant with an opportunity to submit his/her written opinion through a corrective statement in a trial for correction or in a lawsuit for revocation thereof, or to dismiss a request for cancellation of a trial on the ground that the applicant did not provide the claimant with an opportunity to submit his/her written opinion. In particular, the materials submitted by the Commissioner of the Korean Intellectual Property Office only when they were submitted in a trial for revocation in the preceding appeal procedure to the effect that the nonobviousness of the device is denied by the prior appeal

1. A. In order to determine whether the nonobviousness of a device is denied, in light of the scope and content of prior art, the difference between a device subject to determination of inventive step and prior art, and the technological level of a person with ordinary knowledge in the art to which the device pertains (hereinafter “ordinary engineer”), etc., even though the device subject to determination of inventive step differs from prior art, it is necessary to examine whether such difference can be overcome and easily derive the device from prior art. In such cases, on the premise that the person with ordinary skill is aware of the technology described in the specification of the device subject to determination of inventive step, it should not ex post facto determine whether the device could easily be made (see, e.g., Supreme Court Decisions 2013Hu326, Nov. 27, 2015; 2014Hu2184, Nov. 25, 2016).

B. Article 136(6) of the Patent Act, which applies mutatis mutandis under Article 33 of the Utility Model Act, provides a claimant with an opportunity to submit his/her written opinion at the trial for correction, thereby ensuring the propriety of examination of a request for a correction trial and maintaining the credibility of the examination system, is a compulsory provision due to the demand of the public interest. Therefore, it is unlawful to render a trial ruling dismissing a request for a trial for correction on the ground that the claimant did not provide the claimant with an opportunity to submit his/her written opinion through a corrective statement in the trial for correction or in a lawsuit for cancellation of the trial decision, or to dismiss a request for a trial for correction on the ground that the claimant did not provide the claimant with an opportunity to submit his/her written opinion, or to dismiss the request for cancellation of a trial on the ground that the request for correction was unlawful (see, e.g., Supreme Court Decisions 2006Hu2660, Apr. 27, 2007; 201Hu934, Jul. 12, 2012).

2. We examine the above legal principles and records.

A. The scope of claims for the instant device (hereinafter “instant Claim Claim Claim Claim 1”) using the name “Mall ICT, which is equipped with a cell phone shielded with a cell phone shield,” is common with “a composition of the front and rear sides of the patent Tribunal on November 4, 2016” and “a composition of the cell phone controling the cell phone by sending a cell phone with a cellular signal to a cell phone omane through a cellular seat” in Article 1 (1) (hereinafter “instant Claim 1 device”) of the Claim Claim 1 (hereinafter “instant Claim 1 device”) of the Patent Tribunal on November 4, 2016. However, compared to the fact that the cell phone case cannot be laid back after the front part of the cell phone case, the right to claim 1 device of this case can be laid back behind the rear part of the front part (hereinafter referred to as “the front part 1”), while the front part 1 does not have a shielding function, it can be used as a shielding function with the front part of the instant Claim 2.

B. Meanwhile, the above difference 1 appears in the prior design 3, a mobile phone case in the form of milching, and the difference 2 appears in the prior design 2, a shielding stone itself.

C. However, only with the composition of the claim later, the instant Claim No. 1 is the technical task of “the prevention of malfunction in a license that may arise from the milch force behind the front part of the mobile phone case by using the shielding seat at the location corresponding to the alone located in the front part of the mobile phone case by using the shielding seat at the location corresponding thereto.” On the other hand, the prior Claim No. 1 is the technical task of preventing the malfunction of the mobile phone case by using the front part of the cell phone case by using the shielding seat at the location corresponding to the former part of the mobile phone, whereas the prior Claim No. 1 is the technical task of preventing the malfunction of the mobile phone case by dividing the upper part of the cell phone key by the external pressure when the cell phone case is closed, and it is a solution to regulate its operation only by the response of the center in a sense of self-sufficiency and self-sufficiency, rather than the physical reaction. In addition, the prior Claim No. 3 is a case to physically protect the mobile phone itself regardless of the operation of the mobile phone, and the prior Claim No. 2 is a shielding.

D. The contents of the foregoing prior designs do not appear to have motive or cancer to combine them, and each description of the evidence Nos. 3 through 5, which shows self-shield technology using the shielding plate or cream in the electronic parts, is difficult to view that a person with ordinary skills, who combines the permanent seat and cream, can easily apply the shielding seat to the cell phone case.

E. The lower court deemed the video (Evidence B No. 9) posted on the tubes prior to the filing of the instant application, which the Defendant submitted only at the lower court, as evidence for widely known and used art, and deemed as the ground for denial of inventive step. However, the aforementioned video as the ground for denial of inventive step was included in the process of making one-time “ smart case” by attaching a shielding plate to the front part of the mobile phone case, such as the prior design 3, and attaching a shielding plate to the front part of the mobile phone case at the location corresponding to the permanent seat in the event that the video was then milched. This only pertains to a new publicly known art, and it is difficult to view it as evidence of widely known and used art to supplement the prior designs which served as the ground for rejection of the request for a corrective trial, or merely supplement or support the description of the prior designs written on the notice of submission of the corrective opinions. Accordingly, it cannot be deemed as the ground for determining the legitimacy of the trial decision.

F. Ultimately, it is difficult to view that the instant Claim 1 device can be easily designed by combining prior designs.

3. Nevertheless, the lower court denied the inventive step of the instant Claim No. 1 by deeming that the combination of prior designs is extremely easy. In so determining, the lower court erred by misapprehending the legal doctrine on the determination of inventive step of a utility model and the scope of the trial for revocation of a trial decision, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)