[1] Criteria for determining whether the invention in question falls under the scope of patent right of the patented invention, and the meaning and method of determining whether the challenged invention falls under the scope of patent right of the patented invention and where there are parts to be exchanged or modified in the scope of patent right of the patented invention, the requirements for deeming the challenged invention falls under the scope of patent right of the patented invention and the method of determining

[2] In a case where Gap filed a claim for a trial to confirm the scope of right of a patented invention against Eul corporation, the patentee of the patented invention named "the test method of a container container for diesel engines", which sought confirmation that the invention in question does not fall under the scope of right of the patented invention, the case holding that the invention in question falls under the scope of right of the patented invention since the invention in question has the same or equal composition as each element of the patented invention, and the organic combination between the components also include the organic combinations

[1] In order for the invention to be seen as falling under the scope of patent right of the patented invention, an organic combined relationship between each element and its element as indicated in the scope of patent right of the patented invention must be included in the invention subject to confirmation. Meanwhile, even in the invention subject to confirmation, where both inventions have identical solution principles, even if they are based on such equivalent values, they can achieve the same purpose as the patented invention, have the same effect as the patented invention, and where it is obvious to the extent that anyone can easily think about the invention in the art to which the invention pertains (hereinafter “ordinary technician”), unless there are special circumstances such as where the invention subject to confirmation could easily make an invention from the known art at the time of the application of the patented invention, or where the technological or ordinary technician could have easily made an invention from the known art, the invention subject to confirmation should still be seen as constituting the patented invention as a whole and having the same part of the invention subject to confirmation as indicated in the scope of patent right in comparison with the description of the invention subject to confirmation at the time of the application of the patented invention.

[2] In a case where Gap claims a passive trial to confirm that the invention in question does not fall under the scope of patent right of a patented invention against Eul corporation, a patentee of the patented invention named "the test method of a container container for diesel engines", the case holding that the challenged invention is identical with the solution principle of the patented invention to prevent destruction of valves caused by repeated opening and closing of valves at the time of test of a powder valve, and even if it is based on the above composition substitution or modification, it can achieve the purpose and effect substantially identical to the patented invention, and it can be seen that the above modification or modification in order to suspend the provision of the container pressure to a powder valve is an ordinary technician, and it can easily be seen that all of the elements of the patented invention are identical with or identical to the elements of the patented invention, on the grounds that the "the composition of the supply of compressed air that provides the container pressure to a powder valve is converted to another place by air flow saving exchange means," and that all of the elements of the patented invention are identical with the elements of the patented invention are identical to or identical to each other element of the patented invention.

[1] Article 135 of the Patent Act / [2] Articles 97 and 135 of the Patent Act

[1] Supreme Court Decision 2007Da66422 Decided December 24, 2009, Supreme Court Decision 2007Hu3806 Decided June 25, 2009 (Gong2009Ha, 1239)

Plaintiff (Patent Attorney Lee Sung-soo et al., Counsel for the plaintiff-appellant)

A. E. E.E. /S. (Patent Attorney Shin Jong-young et al., Counsel for the defendant-appellant)

Patent Court Decision 201Heo7362 Decided January 13, 2012

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The scope of protection of a patented invention shall be determined by the matters described in the scope of the patent claim. In interpreting the meaning of the text, it shall be objectively and reasonably determined on the basis of the general meaning of the text and text, and in consideration of the description and drawing of the invention, etc. In a case where the technical composition is not known from the text and text of the patent claim, the scope of protection of the patented invention shall be determined by the determination of the technical composition in which the text and text would be expressed (see Supreme Court Decision 2007Da45876, Oct. 15, 2009, etc.).

Furthermore, in order for the invention to be confirmed to be within the scope of the right of the patented invention, an organic combined relationship between each element and its component stated in the scope of the patent right of the patented invention must be included in the invention subject to confirmation. Meanwhile, even in the invention subject to confirmation, the solution principle of task is identical in both inventions, even if it is based on such values, it can achieve the same purpose as the patented invention and actually have the same effect as that of the patented invention, and it is obvious to the extent that anyone can easily think of the invention in the art to which the invention pertains (hereinafter “ordinary technician”), unless there are special circumstances, such as where the invention subject to confirmation falls under the technology that could have been easily seen from the known art at the time of the application of the patented invention, or where there is an obvious exclusion from the scope of the patent right of the patented invention through the procedure for the application of the patented invention, the invention subject to confirmation must be deemed to be within the scope of the patent right as a whole and within the scope of the invention subject to confirmation stated in the specification of the patented invention as well as within the scope of the invention subject to be resolved.

2. We examine the above legal principles and records.

A. First of all, the challenged invention has the same composition as “the test method to record the ozone pressure gradually at the entrance side of the instant patent invention (patent registration number omitted) in the original trial under Paragraph 1 (hereinafter “instant Claim 1”) using the name “the test method of a fuel powder valve for diesel engines”. In other words, the challenged invention has the same composition as “the test method to record the outer pressure gradually at the entrance side of the instant patent invention (patent registration number omitted).”

나. 다음으로, 이 사건 제1항 발명의 원심판시 구성 2에 관해서 살펴보건대, “압력이 연료밸브의 개방으로 인해 강하하는 순간에, 전자 유닛은 … 펌프로의 압축공기의 공급을 차단하는 것을 보장한다. … 분사밸브의 개방 압력은 디스플레이 상에 고정되어 나타난다. 전자적 측정 장치, 자기 밸브 및 디지털 판독 장치의 조합은 … 개방 압력을 단지 수㎳ 동안 유지하는 것을 보장한다.”, “압력 강하가 발생할 때의 압력을 개방 압력으로서 기록한다.”, “압력 게이지는 … 압력 강하가 발생하는 순간의 압력만을 표시부에 나타낸다.”는 명세서 기재 등을 참작할 때, 여기에서 ‘개방 압력’은 분사밸브가 개방되어 압력 강하가 발생하는 순간의 압력을 의미하는 것으로서, 분사밸브의 개방 압력을 초과하여 입구 측의 압력이 강하하는 순간에 오일 압력을 제공하는 압축공기의 공급을 일시적으로 중단하고, 그 순간에 전자적 측정 장치 등의 조합에 의해 수㎳(1000분의 1초) 동안 일시적으로 유지되는 개방 압력을 측정하여 그 개방 압력을 분사밸브의 적합 여부를 결정하는 데에 사용한다는 의미로 해석된다.

However, even in the invention subject to confirmation, it is identical to the composition 2 of the instant Claim 1 in that it suspends the provision of the ozone pressure between the entrance of the container beyond the opening pressure of the valve and uses it to determine whether the open pressure of the valve is appropriate. However, it is different in that the instant Claim 1 invention “the composition of suspending the supply of compressed air to the part-time valve” of the instant Claim 1 as the means to stop the provision of the open pressure between the entrance pressure and the point to the point to prevent the provision of the open pressure of the container to a different point by means of air flow exchange. However, the instant Claim 1 invention is merely an element of the instant Claim 1 invention to prevent the provision of the open pressure to the point to the point to the point of view that “the use of the open pressure of the entrance beyond the open pressure of the part-time valve is not sufficient to take account of the detailed description of the invention and the available technologies at the time of its application, so it is reasonable to adopt the open pressure principle to prevent the use of the valve as the open pressure system.”

C. Ultimately, the challenged invention has the same or equal composition as each element of the Claim 1 invention of this case, and includes the organic combination relationship among its components, so it is deemed that it falls under the scope of the right to the Claim 1 invention of this case.

D. Although the court below interpreted the "open pressure" of 2 as the pressure temporarily maintained in the state of closing the powder valve due to the pressure due to the pressure after opening the window, and judged that the invention in question does not fall under the scope of the right because the invention in question does not have the same or equal composition as the composition of the Claim No. 1 invention, and thus, it erred by misapprehending the legal principles on interpretation of the scope of the patent claim and determination of the scope of protection of the patented invention. The ground of appeal assigning this error is with merit.

3. 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 Yang Chang-soo (Presiding Justice)