[1] Whether the principle of res judicata under Article 147 of the former Patent Act is violated in a case where only a new evidence, which is entirely different from the evidence of the final and conclusive trial decision, is submitted (negative)

[2] The case holding that there is a new or non-obviousness in comparison with the patented invention using the name "a continuous manufacturing device of the destroyed site" in comparison with the cited inventions

[1] Article 147 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) which provides the principle of res judicata includes not only the same evidence as the evidence of the final and conclusive trial decision, but also the evidence which is not sufficient to the extent that it can reverse the trial decision. However, in a case where only new evidence that is entirely different from the evidence of the final and conclusive trial decision is submitted, such new evidence cannot be viewed as "same evidence" regardless of whether it can make a conclusion that the registration of the patented invention can be nullified or not, and thus, it does not violate the principle of res judicata.

[2] The case holding that there is newness or non-obviousness in comparison with the patented invention using the name "a continuous manufacturing device of the destroyed site" in comparison with the cited inventions

[1] Article 147 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) (see current Article 163) / [2] Article 6 (2) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) (see current Article 29 (2))

[1] Supreme Court Decision 2004Hu42 decided Mar. 11, 2005 (Gong2005Sang, 613) Supreme Court Decision 2003Hu427 decided May 26, 2006 (Gong2006Ha, 1190)

Seo Tae-tae (Patent Attorney Hwang Young-chul, Counsel for the defendant-appellant)

Kim-sub (Patent Attorney Kim Byung-jin et al., Counsel for the defendant-appellant)

Sejong Chemical Co., Ltd. (Patent Attorney Kim Byung-jin et al., Counsel for the defendant-appellant)

August 10, 2006

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on December 27, 2005 on the case 2005Da1745 is revoked.

1. Basic facts

A. Patent invention of this case

(1) Title: Continuous manufacturing device (the name of January 13, 1998 is changed from "the continuous manufacturing method of Already site" to "the continuous manufacturing device of Already site") of Already site.

(2) Date of application/registration date/registration number: February 11, 1985/ November 16, 1987/No. 24509

(3) A patentee: Defendant

(4) Claims (the drawings shall be as shown in attached Form 1.).

1. The claim 1. The original place (2) continuously supplied in the part of the right to claim 1. The claim 3 is indicated as clicker (the claim of the patented invention of this case, etc. of this case, but according to the external marking technique, it is expressed that clicker is suitable for clicker. Thus, in the continuous manufacturing device of the site as well as the ordinary clicker (2) clicker (3) clicker (2) clicker (6) clicker (6a) clicker (6) clicker (6a) through clicker (8a) clicker (8b) and 1 clicker (2) clicker (2) clicker (2) clicker (2) clicker (1 clicker) clicker (6) clicker 1) clicker (2) clicker 2) 1 click (6 3) click (6) clug (6) 1) ker.

B. Summary of comparable Invention

(1) Cited Invention 1 [The Japanese Utility Model Gazette (Public Notice Number No. 49-12094), Gap evidence 3, and drawings are as shown in Attached Form 2] publicly announced on March 25, 1974

As regards the “production device of Already site”, water is filled in using a pair of rollers (3) (3) (hereinafter referred to as “raws”) in the latter (hereinafter referred to as “raws”) withdrawn from Rawls (hereinafter referred to as “raws”) and then forming a refinite in the latter (6) in the press tower (7) through which the refinites were formed, and then dried in a driedro (7) after the drieder (8) and then dried in a drieder (9) (9) (9) through the drieder (9) (9), the drieder (2) at the same time dried in the two sides of the latter (2), the drieder (12) (17) (17) (hereinafter referred to as “19) (17) (hereinafter referred to as “refinites”) is affixed to the drieder (6) (19) (hereinafter referred to as “refinites”).

(2) Cited Invention 2 [Utility Model Gazette (Public Notice Number No. 1982-874), A evidence No. 4, and main drawings publicly announced on April 26, 1982 are as shown in Attached Form 3]

The term “around site automatic manufacturing device” is related to “a series of automatic manufacturing devices of Albi site”. Forming red lines (2) into the center line (2) formed in the width of two times the original part of Albi site by means of a Do long-term (3) to dry lines (16) and then dried from the dried (17) to the surface of the original part (17) by means of an arrival roll (17) (17) (17), and then dried from the dried (16) to the upper part of the original part (2), and then dried from the dried (4) to the upper part of the original part (19) by means of a Do long-term line (18) (19) (18) (18) (18) (19) (19) (19). In line with the upper part of the original part of the original part, the dried part shall be dried from the upper part) to the upper part of the upper part (7).

(3) Cited Invention 3 [Patent Gazette (Public Notice Number 1982-1275), Gap evidence 5, and main drawings are as shown in Attached Table 4] publicly announced on July 19, 1982

‘자착식 앨범대지의 연속 제조방법’에 관한 것으로서, 두 개의 원지를 핫멜트(HOT MELT) 접착제(1, 물이나 용제를 전혀 사용하지 않고 100% 열가소성수지로 이루어진 접착제로서, 용융상태에서 피착제에 도포되고 냉각 고화에 의해 접착력을 발휘하게 되는 접착제)를 이용하여 합지시키는 것을 특징으로 하는데, 합지된 원지는 건조로(4)에서 건조된 다음 점착롤러(5)에 의해 양면에 점착제(9)가 도포되고, 이를 점착층 압착롤러(6)에 의해 압착시킨 다음 가착롤러(8)로 원지의 상하 양면에 동시에 투명필름(7)을 가착시키는 구성이 기재되어 있다.

(4) Cited Invention 4 [Patent Gazette (Patent No. 3,271,051) publicly announced on September 6, 196, No. 6, and Major Drawings are as shown in Attached Table 5]

As regards "No. 24" and its manufacturing methods, different from the previous technologies that are separately manufactured and supplied by the spack (59) and panel beams (60), it is characterized by manufacturing so that spack (59) and spack (60) and spack (62) can be combined with spackers (28) and spackers (24). Two spackers (30,30 ", 30" are cut from spackers (28) so that the spacks (31) and spacks (32) can be separated into 5 spacks (35) and 30 spackers (30) and 4 (30) spackers (35) spackers and 4) spackers (30) spackers and 31 spackers (35) spackers and 34 (30) spacks).

(5) Cited Invention 5 [Korean Patent Gazette (Patent No. 4,452,66), Gap evidence 7, and main drawings are as shown in attached Form 6] publicly announced on June 5, 1984

The term “the method of manufacturing multi-channels” is related to the “the transparent micro films and diskettes of multi-channels” consisting of a strings (CS) and a division license (S) combined with pressure testing (ES). In the event that six flats (1, 2, 3, 4, 5, 6) with melting plastics are voltaged by output-on, the Hwab (28) is attached to the lower side and run a certain distance, and the Hwab (29) is attached to the upper side of the Dumen (24,25) by a combined roll (24,25).

C. The procedural background

(1) The Plaintiff filed a petition against the Defendant for a invalidation trial against the patented invention of this case on the grounds that the patented invention of this case is not new or non-obviousness compared to the cited inventions, and the Intellectual Property Trial and Appeal Board reviewed the petition as No. 2005Da1745, Dec. 27, 2005, and dismissed the petition for a trial on the grounds that it is below (2).

(2) Summary of the grounds for the instant trial decision

(A) In the instant patent invention, the phrase “a composition that enables the construction of a new string unit by spreading a starting point on the front side of the original site and facing a new string unit on another side, and then passes through the re-building room after spreading a new string unit on the front side” does not begin with the cited inventions. The instant patent invention does not begin at all, but has a short length of the building room due to the aforementioned composition, but it cannot be expected from the cited inventions, and thus, the instant patent invention has a newness or inventive step compared with the cited inventions.

(B) Although a petition was filed for an invalidation trial on June 28, 1997 with respect to the patented invention of this case, the said petition for invalidation trial was dismissed by a decision of 97Da885 and the said decision became final and conclusive on October 23, 1998. The cited inventions submitted by the Plaintiff did not have sufficient evidence to reverse the trial decision of the invalidation trial on the said 97DaDa885 case. Thus, the instant petition for invalidation trial was unlawful in violation of the principle of res judicata, and thus, the instant petition for invalidation trial is dismissed.

[Evidence] Evidence Nos. 1, 2-1, 2-2, 3-8, and the purport of the whole pleadings

2. Summary of the grounds for revoking the trial decision asserted by the Plaintiff

A. The cited inventions submitted in the instant trial were not submitted in the patent invalidation trial, and the instant trial petition is a new evidence that could reverse the final and conclusive trial decision of 97Da1885. Thus, the instant trial petition does not violate the principle of res judicata.

B. The patented invention of this case is using a contact film in attaching transparent film to the original site. The contact contact is distinct from the contact contact point, so it is impossible to attach transparent film if the contact point is dried and solidified. Thus, the patented invention of this case is an invention that cannot be executed.

C. (1) In the instant patent invention, the original site in which the matching process is applied repeatedly passes through one drying room. The composition of the two drying rooms separated from the cited inventions 1 and 2 is initiated only once, and if the party is the party, it can obtain the same effect as the method of the construction of the instant patent invention by placing the two drying rooms at a lower level. If the original site repeatedly passes through one drying room, the construction efficiency may be reduced as the unit of the drying room becomes extinct.

(2) The composition of attaching transparent films in the instant patent invention to the two sides of the original page by the successive attachment method is not only a substantial difference in the composition and effect of comparable inventions 3, which attach transparent films to the original page by the simultaneous attachment method, but also the comparable inventions 4 and 5 start the attachment method such as the instant patent invention.

(3) Therefore, the instant patent invention has no inventive step compared to the cited inventions.

3. Determination

A. Whether the instant petition for trial violates the principle of res judicata

(1) Article 147 of the former Patent Act (amended by Act No. 4207, Jan. 13, 1990; hereinafter the same) which provides the principle of res judicata provides that when a trial decision under this Act becomes final and conclusive and registered, anyone may not file a petition for the trial on the same facts and identical evidence. Here, “same evidence” includes not only the same evidence as the one of the final and conclusive trial decision but also the same evidence as that of the final and conclusive trial decision to the extent that it can be reversed (see Supreme Court Decision 2004Hu42, Mar. 11, 2005). However, where only new evidence, which is entirely different from the evidence of the final and conclusive trial decision, is submitted, it does not violate the principle of res judicata because it cannot be deemed as “same evidence” regardless of the conclusion that the registration of a patented invention can be nullified.

(2) According to the evidence Nos. 2-1 and 4 evidence Nos. 2-1 and 4, the plaintiff filed a patent invalidation trial against the patent invention of this case on June 28, 1997, and the plaintiff submitted the patent invention Nos. 372 (Public Notice No. 78-778, hereinafter referred to as the "Manufacture") of the Utility Model Gazette publicly announced on July 31, 1978, and on December 23, 1969, the U.S. patent (Patent No. 3,485,705, hereinafter referred to as the "Non-Party No. 3") patented on Dec. 23, 1969, and the patent trial ruling No. 352 (hereinafter referred to as the "printed evidence") issued by the sentence of the Seoul High Court on Sep. 23, 197 and the registered patent trial ruling No. 1985, Feb. 19, 198.

However, in the instant trial, the quoted evidence referred to in the said trial decision was submitted as invalid evidence in the instant case, and the quoted evidence referred to in the said trial decision is not submitted at all, and other quoted inventions (Evidence A to Nos. 3 through 7) that are different from the quoted evidence are submitted. As such, the instant trial cannot be deemed to have been requested by the same evidence as the final and conclusive trial decision, and the instant trial request cannot be deemed to have violated the principle of res judicata.

B. Whether the patented invention in this case is impossible to be worked

(1) The plaintiff asserts as above 2-B, and the defendant asserts that if a person with ordinary knowledge in this technology field (hereinafter "party business operator") is a person with ordinary knowledge, it can naturally be seen that the contact with the patented invention of this case is not permanent contact with the patented invention of this case, but a voltage contact with the patented invention of this case.

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Therefore, the plaintiff's assertion that the patented invention of this case is impossible to be worked is without merit.

C. Whether the patented invention in this case is non-obviousness compared with comparable inventions

(1) preparation for the technical sector and purpose;

The purpose of the patented invention of this case is to reduce defective products and to improve the quality of Alban by simplification and accuracy of the manufacturing process in a continuously manufacturing device of Alban site. The purpose of the patented invention of this case is to manufacture the well-quality Alban site as an invention concerning the device or method of continuous manufacturing of Alban site. As such, the patented invention of this case and its technical field and purpose are substantially the same. In comparison 4, the purpose of the patented invention of this case is to make the multi-story panel Bobrid, Spick, and integrated pla-type pla-type pla-type pla-type pla-type pla-type pla-type pla-type pla-type pla-type pla-type pla-type pla-type pla-type 4, which is to make the patented invention of this case and its technical field and purpose are similar, because the patented invention of this case and its technical field and purpose are to provide the patented invention of this case by separating and its purpose.

(2) Preparation for composition and effects

(A) Components 1

1) The component element 1 pertains to “the arrangement of a drying room.” Compared inventions 1 and 2 are composed of “the arrangement of a drying room.” Compared inventions 1 through 2 in one dried 2 in one dried 2 in one dried 2 in one dried 3 in one dried 3 in one dried 3 in one dried 2 in one dried 2 in one dried 2 in one dried 2 in one dried 3 in one dried 1 in one dried 2 in one dried 3 in one dried 1 in one dried 2 in one dried 3 in one dried 2 in one dried 1 and one dried 2 in one dried 1 in one dried 2 in one dried 2 in one dried 1 in one dried 2 in one dried 1 in one dried 2 in one dried dried 2 in one dried 3 in one dried dried 2 in one dried dried 3 in one dried 3 in one dried 2.

Due to the foregoing differences in composition 1, components 1 can be equal to the quantity of a contacted product that is adhered to the two sides of the original site (the quantity of a contacted product may vary if the contacted product is spreading below as shown above as shown in the invention 1 of non-intersection 1), and can escape from the prosperity of work arising from the inefficiency and inaccuracy of the original site by saving the original site like the past (the patented invention of this case contains a contacted product on the two sides of the original site, avoiding films, while the patented invention 2 contains a contacted product on the original site, avoiding a transparent film only on the one side of the original site, the cited invention 1 contains a contacted product on the two sides of the original site, but the combinationed invention 1 contains a half of the confected products to be dried, and thus, the effect of reducing the length and the effect of the combinationd invention 2 can not be divided from the above one-way one-way length.

In addition, the cited invention 3 is limited to only one dried building, which dried from the dried road (4) and the comparable invention 4 and 5 do not constitute a dried road, and the comparable invention 3, 4, and 5 do not constitute an element 1.

Therefore, the composition of the component 1 can not be easily made by the party from comparable inventions.

2) On this point, the Plaintiff asserts that, when passing through a building room several times, the construction efficiency may be reduced because the water division is gathered in the upper part of the building room, and the water division becomes the state of spreading. Even if there are technical problems, such as the Plaintiff’s assertion in the composition of the elements 1, as seen earlier, insofar as the composition of the elements 1 differs compared with the comparable invention and has a very inventive effect, the inventive step cannot be denied solely on the ground that the aforementioned problems are not practically impossible to implement the composition of the elements 1, but there is room for such problems as above in the composition of the elements 1.

(B) Components 2

The components 2 are the composition that combines transparent film (12) (12) (12) (12) (12) by film transfer roller (11) and film 10 (10) (10) (hereinafter “net attachment method”) with the originals in order (hereinafter “net attachment method”). The elements of comparable invention 3 consist of: (a) the composition that folds the originals into the two sides of the originals of the cited invention 3 at the same time (hereinafter “net attachment method”); (b) the composition that folds (35) of raw materials listed in supplementary invention 4 from the comparable invention 4 by means of presslers (33); and (c) the composition that sclickers (43) are attached by means of presslers (40); and (d) the elements of comparable invention 2 reflects films by the method of attachment; and (e) the structure that sclickerss (40) are attached by the method of simultaneous attachment; and (e) the structure of comparable invention 3 intends to attach the goods in sequence 4 in order.

However, the detailed description of the invention in the specification of the patent invention of this case states that "the film transfer roll (11) or (11) of the part in which the defective quantity has occurred may be simple and promptly adjusted by immediately adjusting only the film transfer roll (1) or (11) to reduce the scope of defective goods to the maximum extent possible, and further work may be carried out within a rapid time." However, since the defendant, the patentee, has not sufficiently explained how such technical effects appear, it is difficult to recognize that the elements 2 have the above effect. The defendant asserts that the successive attachment method is small by the film roll (10) (10) when compared with the simultaneous attachment method, the movement speed of the original and transparent film can be great. However, since the defendant did not present any technical grounds to support the above argument, it is difficult to recognize the above effect.

Therefore, the successive attachment method of components 2 cannot be deemed to have significant technical effects compared to the simultaneous attachment method of comparable inventions 3, and the successive attachment method itself is also initiated in comparison with comparable inventions 4, which are similar to components 2 and technology field. Therefore, components 2 can be easily derived from comparable inventions 3 through 4.

(3) Arrangement of the result of preparation

As seen above, components 2 can easily be derived from the cited inventions 3 through 4, but it is difficult to see that the method of laying up a dried road of component 1 from the comparable inventions is easily derived from the comparable inventions, and it is more significant than the comparable inventions. Thus, the patented invention of this case cannot be seen as easily capable of invention by the comparable inventions.

D. Sub-committee

Therefore, the patented invention of this case is not a non-working invention, and is non-obviousness compared with the comparable inventions, and the trial decision of this case was dismissed on the ground that the patented invention of this case violated the principle of res judicata, although the trial decision of this case cannot be deemed to violate the principle of res judicata, it was erroneous in the rejection of the trial decision of this case on the ground that the patented invention of this case violates the principle of res judicata. However, the trial decision of this case rendered a substantive judgment that the patented invention of this case has newness or non-obviousness compared with the comparable inventions of this case, and rejection

4. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Choi Sung-sung (Presiding Judge)