Although the Defendant’s technology does not fall under the scope of patent rights as stated in the facts charged, it cannot be said that the Defendant infringed the above patent right, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous by mistake of facts or misapprehension of legal principles

2. Ex officio determination

A. Summary of the facts charged

1) The patent right of the Nonindicted Party

The non-indicted is a patentee (patent number: omitted; the title of the invention is a buffer system for inserting snow vehicles; hereinafter “patent right”) who filed an application for patent on September 13, 2005 for patent on “buffer system for inserting snow vehicles” and completed patent registration on January 19, 2007, and the buffer system for inserting snow is a product that has a function to protect snow removal equipment from obstacles.

2) Defendant’s patent infringement

The Defendant is a person who produces, manufactures, and sells a special motor vehicle in the name of “○○○○” in the Cheongju-si Office ( Address 1 omitted).

On January 201, 201, the Defendant produced 15 snow removal equipment for small 1t vehicle at △△△△△△△ located in Seo-gu, Seo-gu, Cheongju ( Address 2 omitted), and sold 500,000 won per vehicle to the Nonindicted Party by installing a “buffer for the removal of snow vehicles” with patent rights to the aforementioned small 1t vehicle removal equipment.

On January 201, 201, the Defendant, in the same manner, sold KRW 9 million per 17,000 per vehicle to the Nonindicted Party with a patent right on the 17 mix 5t vehicle snow removal devices in the middle-type 5t vehicle snow removal devices in the same manner, at the Seocho-gu Amar ( Address 3 omitted) in the Seocho-gu Amcomman.

Accordingly, the Defendant infringed the patent right of the Nonindicted Party on the “buffer system for the removal of snow vehicles”.

B. The judgment of the court below

The court below found the defendant guilty of the facts charged in the instant case on the premise that the patent right of this case was valid by taking account of each of the evidence in its holding.

C. The judgment of this Court

The defendant's grounds for appeal shall be examined ex officio prior to judgment.

1) A prosecutor prosecuted the facts charged in the instant case by applying Article 225(1) of the Patent Act. However, an infringement of patent right under Article 225(1) of the Patent Act is an offense for which a victim’s complaint is filed. If a trial decision invalidating a patent becomes final and conclusive, the patent right is deemed never to have existed unless it falls under Article 133(1)4 of the Patent Act (see, e.g., Article 133(3) of the Patent Act). Thus, even before a final and conclusive trial decision invalidating a patent becomes final and conclusive, an accusation based on the patent right cannot be deemed to have been lawful accusation by the complainant. A public prosecution based on such a complaint constitutes a case where a prosecution procedure under Article 327 subparag. 2 of the Criminal Procedure Act is in violation of the law and becomes null and void (see, e.g., Supreme Court Decision 2007Do6325, Apr. 10, 2008).

2) According to the evidence submitted at the trial in this case, the non-indicted 1 filed a lawsuit against the non-indicted 1 on February 13, 201 on the basis of the complaint that the defendant infringed the patent right of this case, and the prosecution of this case was instituted. ② Meanwhile, the defendant rendered a request for a trial on the patent of this case against the non-indicted 1 who is the patentee of this case on July 3, 2012. The Korean Intellectual Property Tribunal rendered a trial decision dismissing the defendant's request on April 30, 2014 after examining the above request for a trial on April 30, 2014. ③ The defendant filed a lawsuit against the non-indicted 1 on May 30, 2014 with the Patent Court of Korea for the revocation of the above trial decision of this case on the ground that the patent of this case should be invalidated, and the above decision of the Patent Tribunal of this case should be revoked on the ground that the non-indicted 2's patent of this case on December 18, 2014.

3) Examining the above facts in light of the legal principles as seen earlier, a trial decision invalidating the patent of this case becomes final and conclusive, and the reason does not fall under Article 133(1)4 of the Patent Act, and thus, a complaint by the Nonindicted Party based on the patent of this case cannot be deemed a lawful complaint by the complainant. The public prosecution of this case based on such a complaint constitutes a case where the procedure for public prosecution under Article 327 subparag. 2 of the Criminal Procedure Act is in violation of the law and becomes null and void. In this regard, the judgment of the court below shall be dismissed.

3. Determination

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant, on the grounds that the court below ex officio reversals, and it is again decided as follows.

[Grounds for multi-use Judgment]

As seen earlier, the summary of the facts charged of this case is dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act. It is so decided as per Disposition by the assent of all participating Justices.

Judges Hak-ok (Presiding Judge) Kim Dok-do