Article 224 subparag. 3 of the Patent Act / The purport of Article 224 subparag. 3 of the Patent Act / Even though the technical composition of an article with a patent or patent application, or with a mark that is produced by a patented method or a patent application, or with an indication that is easily confused, is partially modified, but it does not constitute an indication prohibited

Article 224 Subparag. 3 of the Patent Act prohibits an act of indicating an article that is not a patented one, an article that is not a patent application, or an article that is not a patented one, or an article that is produced by a non-patent method or a method that is not a patent application, or an advertisement, etc. in order to produce, use, or transfer an article that is produced by a non-patent method or a method that is not a patent application, or an act of indicating it as if it is produced by a patented method or a patent application, or making

The purport of the foregoing provision is to protect the safety of transaction by punishing an act of misunderstanding the public by abusing advantage of the transaction in favor of a patent and trust in a patent. In light of such purport, even if the technical composition of an article indicated by a patented product, etc. has partially modified the composition of the invention described in the claims, if such modification is merely an addition, deletion, or modification of the technical composition to the extent that a person with ordinary knowledge in the relevant technical field ordinarily employs, and if such modification does not reach the degree of misunderstanding the public, such as not creating a special difference in the effects of the invention, it cannot be deemed as an act of indicating a patented product, etc. on the said article, as prohibited under the above provision.

Article 224(1) and (3), and Article 228 of the Patent Act

Defendant 1 and one other

Prosecutor

Law Firm Chungcheong, et al.

Seoul Southern District Court Decision 2013No343 decided August 16, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. Article 224 Subparag. 3 of the Patent Act prohibits an act of indicating, using, or transferring articles not patented under subparagraph 1 of the same Article, articles not patented, non-patent-related articles, or articles produced by a non-patent-related method or a non-patent-related method in an advertisement, etc. as patented or patent-related articles, or as those produced by a patent-related method or a patent-related method, or as those easily confused therewith (hereinafter referred to as “patent-related articles, etc.”).

The purport of the foregoing provision is to protect the safety of transaction by punishing an act of misunderstanding the public by abusing advantage of the transaction in favor of a patent and trust in a patent. In light of such purport, even if the technical composition of an article indicated by a patented product, etc. was partially modified in the composition of an invention described in the claims, if such modification is merely an addition, deletion, or modification of a technical composition to the extent of ordinary employment by a person with ordinary knowledge in the relevant technical field (hereinafter “ordinary technician”), and if such alteration does not reach the degree of misunderstanding the public, such act does not constitute an act of indicating a patented product, etc., prohibited under the above provision.

2. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following circumstances.

(1) Defendant 1 filed an application for patent invention of this case with Defendant 1 and Defendant 2 Co., Ltd., the name of December 16, 2003, as “induction flusium,” and received the patent registration (patent registration number omitted) on February 6, 2004.

(2) Claim No. 9 of the instant patent invention claim (hereinafter “instant Claim No. 9”) provides that the remains shall be buried in an open space and the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the above body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the above body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of

(3) In comparison with the invention of Paragraph (9) of this case, there is a difference between the gas injecting and injecting valves that the Defendants form the “debrisoning” part of the accommodation space, and the remaining composition is the same.

(4) Around December 15, 2009, Defendant 1 posted an advertisement on Defendant 2’s website (location omitted) stating that “after the truth, Defendant 1 had fully realized the system of resistant shock,” and “after the truth, Defendant 1 was recognized through the patent registration (patent registration number omitted) of the patent for the mosium mosium mosium mosium mosium mosium after the truth.”

(5) The core technical task of the instant Claim No. 9 is to minimize the corruption and deterioration of remains by maintaining the storage space with a simple structure in a strong and high-Pressure state. The installation change of the location of the gas injector and the injecting valve is merely a change in the technical composition to the extent that ordinary technicians ordinarily employ, and there seems to be no special difference in the effects of invention.

3. Examining these circumstances in light of the legal principles as seen earlier, the alteration of technical composition of the goods actually manufactured by the Defendants in comparison with the instant Claim Nos. 9 would not reach the degree of misunderstanding the public by abusing in favor of trade arising from patent and trust in patent, and thus, even if the Defendants advertised the said goods to have obtained a patent, such an act does not constitute an act of labeling prohibited under Article 224 of the Patent Act. The Defendants’ advertisement using the expression “integrative system after the truth,” or on the basis that there is a possibility that the goods manufactured by the Defendants may constitute goods produced by using the publicly known technology. Thus, it cannot be viewed otherwise solely because the Defendants

The judgment below to the same purport is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on Article 224 of the Patent Act or omitting judgment.

4. As seen earlier, there is no need to further examine the argument in the grounds of appeal that Defendant 1’s act does not constitute a constituent element of an act of indication prohibited under Article 224 of the Patent Act, and thus, Defendant 1’s criminal intent is recognized.

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)