The case reversing the judgment of the court below which found that the purpose and technical composition of the registered utility model are different from those of the registered utility model because it is technically viable device, on the ground of the misapprehension of legal principles as to the determination of inventive step of the device.

The case reversing the judgment of the court below which recognized that the registered utility model differs from the purpose, technical composition, and operational effects, by judging that the device which is technically unrealistic, is feasible, on the ground of the misapprehension of legal principles as to the determination of inventive step of

Articles 4(2) and 35 of the Utility Model Act (Article 135 of the Patent Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 1988,47) (Law No. 1990,652) and 88Hu752 decided Feb. 13, 1990 (Gong1990,652) and 90Hu212 decided Jan. 15, 1991 (Gong191,751) and 93Hu1223 decided Jan. 12, 1995 (Gong195,907)

Plaintiff’s Patent Attorney Seo-sung et al.

Defendant Patent Attorney Kim Tae-ok et al., Counsel for the defendant-appellant

Korean Intellectual Property Trial Office 91 No. 91 dated April 30, 1994

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal Nos. 1 and 2 are examined together.

According to the reasoning of the decision of the court below, the court below judged that (a) the registered utility model consists of an emergency call circuit (1) which controls multiple telephone numbers in order to notify emergency situations and a voice call (2) which prepares for voluntary notification messages in order to control various emergency situations, and that (a) the device is comprised of one short circuit (13) and one short circuit (13) which controls one emergency situation and one short circuit (13) to notify the emergency situation to the respondent; (b) the two are different means of organization; (c) the registered utility model is composed of two short lines; and (d) the registered utility model is composed of one short circuit (13) one short circuit (13) one short circuit (1) one short circuit (2) one short circuit (1) which controls the situation of emergency call; and (d) one short circuit (1) one another is notified of the technical situation of the following telephone numbers in order to give notice of the situation of emergency call, and thus, it does not change the effect of free change of the voice, and (e) one short circuit (3) the device to be notified of the emergency call call.

However, according to the records, although (a) a Subparag. (a) device has a function to attend a field situation, it does not seem that the telephone receiver’s function to view the field through a remote control circuit is technically feasible by the device. (a) A) A chip (13) merely consists of an emergency control circuit consisting of multiple kinds of chips of the device, and thus, it cannot be deemed that the above opening function or chip is merely a simple design change or simple part that can be easily applied by a person with ordinary knowledge in the technical field, and thereby, it does not bring about a more inventive effect. If the facts are true, it is difficult to recognize inventive step in the device solely on the basis of the difference between its purpose, technical composition and action effect, and the existence of audience function.

Therefore, the court below should examine the technical composition and effects of the device in detail, and examine the composition of the device in question, and then determine that the technical composition of the device in subparagraph (a) is feasible and that the technical composition of the device in subparagraph (a) is different from the circuit function and technical composition and effects of both devices, and that the device in subparagraph (a) does not fall under the scope of the right to the device in this case. In conclusion, the court below erred by misapprehending the legal principles on determining the identity and inventive step of the device, or by failing to exhaust all necessary deliberations, which affected the result of the trial decision. Thus, the ground for appeal pointing this out has merit.

Therefore, the decision of the court below is reversed and the case is remanded to the Korean Intellectual Property Tribunal for a new trial. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-ho (Presiding Justice)