Plaintiff Co., Ltd. (Patent Attorney Jeong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Patent Attorney Choi Jong-soo et al., Counsel for the defendant-appellant)

November 23, 2006

1. The decision made by the Intellectual Property Tribunal on April 19, 2006 on the case No. 2005DaDa2491 shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. The reasons why the defendants' affirmative rights scope and trial decision on the request for confirmation is rendered;

[Evidence] Evidence Nos. 1 and 2-1 and 2

A. The Defendants’ patented inventions, the challenged inventions, and the cited inventions

(1) Patent invention of the Defendants

The claims and drawings of the Defendants are “small wheelchairss and light wheelchairss equipped with them and their manufacturing methods” registered with the patent registration number No. 291213 on March 8, 2001, which was filed by the Defendants on August 10, 199, as stated in the [Attachment 1].

(2) The challenged invention

“A light wheel chairs for ice rink,” being conducted by the Plaintiff, the explanatory note is as shown in attached Table 2.

(3) Invention 1 (A No. 5)

In the U.S. Patent Gazette No. 5,580,093 dated December 3, 1996, the summary of the “luminous roller wheel chairs” is as shown in attached Form 3.

(4) Added Invention 2 (A)

The phrase “Automatic Mine Wheel” in Written Notice No. 32834, Mar. 11, 1998, which reads as “Automatic Mine Wheel” in Written No. 32834, as shown in attached Form 4.

B. Claim for confirmation of the scope of active rights by the Defendants and the cited trial ruling

(1) The Defendants asserted that the Plaintiff’s challenged invention falls under the scope of the right of the patented invention and claimed active confirmation of the scope of the right of the patented invention, with all the elements of the Defendants’ patented invention Claim 1 and 5 (hereinafter “Claim 1 and 5”).

(2) On April 19, 2006, the Korean Intellectual Property Tribunal deliberated on the invention as 2005Da2491, and rendered a trial ruling citing the request by the Defendants on the grounds that the invention subject to confirmation does not fall under the free implementation technology, but falls under the scope of rights based on the substantially identical claim 1 and 5 inventions.

2. The Plaintiff’s assertion and issue of grounds for revocation

The key issue of the instant case is whether the claim 1 and 5 inventions were publicly announced by comparable inventions 2, and whether the challenged invention falls under the technology of free implementation and the scope of the right of claims 1 and 5 inventions. The gist of the Plaintiff’s claim for revocation of the trial decision is as follows.

(a) Claims 1 and 5 inventions are the same as those of comparable inventions 2. The difference between the smokeing (23) of comparable inventions 2 and the buffer (130) of claims 1 and 5 inventions is merely a simple design change. In other words, claims 1 and 5 inventions are denied by comparable inventions 2.

(b) The characteristic elements of the challenged invention constitute free-to-work technology, as they can be easily claimed from comparable inventions, as follows.

(1) 확인대상발명에서 베어링(220)과 부쉬(214)를 제거하여 영구자석조립체(230)를 허브부재(250)로부터 쉽게 삽탈하는 구성은 비교대상발명 2의 부쉬(25)와 베어링(24)을 제거하여 절연링(23)과 자석(22)을 휠캡(5)으로부터 쉽게 삽탈하는 구성과 동일하다.

(2) The combinations of each element of the permanent mar assembly (230) of the challenged invention and the display marb assembly (14) of comparable inventions 1 are the same as each other. The self-defluence (234) of the challenged invention 2 can easily be claimed by putting the smokeing (23) of comparable inventions 2 into the self-defluence (42) of comparable inventions 1, and using permanent marcs (232) to the sarcs or paints of comparable inventions 1.

(c) The invention in question does not fall within the scope of the right, since the buffer (130) which is a characteristic element of the invention in question 1 and 5 claims does not fall within the scope of the right.

3. Whether a claim 1 or 5 invention is a publicly known technology based on comparable inventions 2;

A. Criteria for judgment

In a case where the patented invention is not new in light of the publicly known art at the time of the application for patent registration, the scope of the right cannot be acknowledged regardless of whether a trial decision for invalidation of registration becomes final and conclusive. In order to determine the loss of newness of the patented invention, all the composition of the patented invention should be compared to the patented invention with the comparable invention 1.

B. Determination of newness of claim 1 of a patented invention

(1) Analysis of the elements of patent invention claim 1

Among the elements of patent invention claims 1 (hereinafter referred to as "claim 1 invention"), the composition (hereinafter referred to as "the composition of inserted material") which easily inserts a bowling permanent stone assembly (128,130) from a hub assembly (20) (hereinafter referred to as "the composition of inserted material") and wheelchairs (122) and permanent stone (128) which are installed between the two components of patent invention claims 1 (hereinafter referred to as "claim 1 invention") and the two components (hereinafter referred to as "buffer structure") other than buffer (130) which protect permanent stone from shock (hereinafter referred to as "buffer structure") were publicly announced before the application (no dispute exists between the parties).

Therefore, newness of the claim 1 invention depends on whether the composition of the inserted material and the buffer composition, which are two distinctive elements, are initiated in the comparable invention 2.

(2) Preparation for the “consipation of materials”

비교대상발명 2의 도4에 의하면, 자석(22)의 외경이 베어링(24)이 설치된 관통공의 내경보다 작으므로 (청구항 1 발명과 같이) 베어링(24)과 부쉬(25)를 제거하면 자석(22)을 휠캡(5)으로부터 쉽게 분리하거나 삽입할 수 있다.

Therefore, the composition of the inserted materials in two inventions is substantially the same.

(3) Preparation for “buffer formation”

In the comparable Invention 2, there is no composition that is installed between the wheelchairss (122) of the invention of Claim 1 and the permanent stone (128) to protect permanent stone from shocks (130).

As to this, the Plaintiff asserts that the smokeing (23) of comparable invention 2 is located between a axis (11) and a knife (22), and thus, the Plaintiff functions to protect the knife from shock. Thus, even if the buffer (130) of the invention 1 is somewhat different from the shape of the claim 1 invention, the difference is merely a simple design change matter.

The specification of comparable invention 2 does not specify the material of the smokeing (23). However, in light of the fact that the smokeing (23) is installed between two bending (24) and plays a role in the Spanish that maintains the interval, the strength of the material should be relatively high. In addition, the smokeing (23) has a structural vulnerability that is separated from the thickness of the part supporting the self-tin (22) for the livestock (11) so that the thickness of the part supporting the string (22) is not different from the thickness of the 24th (24) and that the vertical and horizontal pressure of the livestock (11) is separated from the two sides of the 22th (22).

Therefore, it is judged that the smokeing(23) of comparable invention 2 merely plays a role of maintaining the distance as a bending Spanish, and does not have a buffer function that absorbs shock. The plaintiff's above assertion is without merit.

(4) Sub-committee: Novelty.

Ultimately, the composition corresponding to the buffer machine (130), one of the characteristic elements of the invention 1 invention, is insufficient in the comparable invention 2. Thus, the claim 1 invention is not a technology publicly known by the comparable invention 2.

C. Determination of newness of claim 5 of a patented invention

(1) Patent Claim 5 (hereinafter “Claim 5 invention”) shall meet all the elements of Claim 4, and in addition, a permanent stone assembly (128, 130) among them shall be installed in a space between bridges (126) and bridges (126) on both sides of bridges (20) and shall be limited to a buffer (130) which shall include a bridge (128) which protects permanent stone between wheels (12) and permanent stone (128) from shocking. The aforementioned two additional elements are the same as the two distinctive elements of Claim 1 invention as seen earlier.

(2) However, the composition corresponding to the buffer (130) which is one of the foregoing supplementary components is not in comparable invention 2 as seen earlier.

Therefore, claims 5 inventions are not publicly known by comparable invention 2.

4. Whether the challenged invention is a free implementation technology based on comparable inventions;

A. Preparation for purposes

The inventions subject to confirmation and the comparable inventions are related to the wheel chairss for the artificial ice or for the kick, with the aim of improving the structure of the power generator installed in the light wheelchairs or improving the combined structure of the circuit board and the luminous dives, thereby improving the durability and utility of the light wheelchairs.

Therefore, these inventions are the same as technical field and purpose.

(b) Organizational preparation

(1) Analysis of components of the challenged invention

The characteristic elements of the invention in question are as follows: the composition of permanent stone assembly (230) that can easily be inserted from the brush (250) by removing the brush (220) and the brush (214) and the brush (250). At the same time, the brush (232) fixing the brush permanent stone (232) is brush (234). The rest of the elements of the invention in question (such as the wheels of steel material, two bruing, permanent stone assembly, electric self-fluor assembly, and so on) are the technologies publicly announced by the cited inventions (no dispute exists between the parties).

On the other hand, the permanent seat (232) of the invention subject to confirmation is a rare earth resource that is relatively weak to shock, and the self-debris (234) is a PC (Pholy caron), PBT (PBT), PP (Plypropyl-).

e) The intermediate part of the JVC material, such as the PVC material, is considered to be "buffer function" to protect the scarlet permanent stone (232), which is weak in shock, from shock to a certain degree, in light of the characteristics of the material in question, the middle part of the JVC material, which is relatively more carbon than the wheelchairs (210) of steel material, is considered to be a buffer function to protect it from shock to a certain degree.

The following is to look at the characteristic elements of the challenged invention in comparison with the cited inventions.

(2) Preparation for the component of the challenged invention and comparable invention 1

(A) According to comparable invention 1’s Do2-2, the external diameters of a bowling type (26) are larger than the inner diameters of the pipe air with a display display (18). Thus, even if a display display display (18) is removed, it is not easily separated from a string (26). Further, comparable invention 1 does not suggest or suggest the technology for the composition of a display display of the challenged invention.

Therefore, the component 1 of the challenged invention is recognized as the peculiar nature and complexity of technology compared to the comparable invention 1.

(나) 비교대상발명 1의 자석허브(42)는 그 양쪽 단부가 베어링(18)과 휠프레임 사이의 거리를 유지하는 외측 스페이서로서 기능하고, 두께가 얇은 양쪽 가장자리 부분은 휠액슬(27)과 베어링(18)을 지지하는 기능을 하며 안쪽 단턱부는 두 베어링(18)의 안쪽 간격을 유지시키는 내측 스페이서로서 기능하고 있다. 자석허브(42)가 이러한 기능들을 하기 위하여는 고정너트(29)로 양쪽에서 강하게 죄는 수평외압, 주행 중에 지면으로부터 가해지는 수직외압 등을 견딜 수 있도록, 그 자체로 수축이나 변형이 되지 않을 정도의 상당한 강도를 갖는 재질로 구성되어야 한다. 또한 비교대상발명 1은 전자기 전류유도발전기의 자석(26)으로 희토류계 자석이 아닌 상대적으로 충격에 강한 세라믹계 자석을 사용하고 있다(갑 제5호증 컬럼3, 9∽11줄).

Considering the above circumstances, it is deemed that the “buffer function” of the comparable invention 1 is not an element adopted to alleviate the shock that leads to self-defluence. Therefore, the composition difficulty is recognized since the “buffer function” is added compared to the “breab(42) of the comparable invention 1.”

(3) Preparation for components of the challenged invention and comparable invention 2

(A) According to the Do-4 of the comparable Invention 2, since the external diameter of 22) is smaller than the inner diameter of the pipe hole where a brupting (24) is installed, a permanent brupt (232) can be easily inserted from wheelchairs (250) if removal of a brupting (220) and a brush (214) is made.

Therefore, the challenged invention and the comparable invention 2 are identical in the composition of inserted materials.

(B) As to the cited invention 2, the Plaintiff asserts that the difference is merely a simple design change matter, even if the shape differs from the self-debris (234) of the challenged invention 2, since the smokeing (23) of the cited invention 2 is placed between a axis (11) and the self-debris (22), and thus, it functions to protect the self-debris from shocking.

However, as seen in paragraph 3.b. (3) above, it is difficult to readily conclude that the following is a simple modification of design, since the smokeing (23) of comparable invention 2 merely plays a role of maintaining the distance as a bendish, and there is no buffer function that absorbs shock.

Therefore, the plaintiff's above assertion is without merit.

(4) Preparation for composition of combinations between challenged inventions and comparable inventions 1 and 2

The plaintiff asserts that the smokeing(23) of the comparable invention 2 can easily cite the self-defluentness (234) of the invention subject to confirmation by exchanging the related invention 2 with the self-defluence (42) of the comparable invention 1.

However, unlike the self-defluence (234) of the cited invention 1, the cited invention 1’s self-defluence (42) did not have been adopted with an intention to mitigate the shock that would be put to permanent seat unlike the self-defluence (234) of the challenged invention [4.b. (2)(b)].

Therefore, in the absence of any motive or perception of a person with ordinary knowledge in the art to which the invention pertains, it is determined that it is difficult to easily cite a self-debrist(234) with a buffer function of the invention in question by simply exchanging the cirrhing (23) of comparable inventions 2 into the self-debluence (42) of comparable inventions 1.

The plaintiff's above assertion is without merit.

(c) preparation for effects of action;

The invention subject to confirmation is relatively weak in shock, but it is effective to enhance the durability and stability of permanent scarkes by installing scarkes and scarkes with strong scarkes with strong scarkes.However, the inventions subject to confirmation do not suggest that they have a buffer means to protect from external shock even if they are used permanent scarkes or adopted.

Therefore, the challenged invention has a higher effect than that expected from comparable inventions.

D. Summary of the result of preparation and the conclusion thereof;

If so, the invention in question is judged that a person with ordinary knowledge in the technical field to which the invention pertains cannot easily make an invention through the cited inventions or the combination thereof, and thus, it does not constitute a free-to-work technology.

5. Whether the invention subject to confirmation falls under the scope of a right to the invention 1 or 5;

(a) preparation for the remainder of the elements of claims 1 and 5, excluding the distinctive elements of claims 1 and 5;

The aforementioned two distinctive elements of the Claims 1 and 5 as seen earlier, and the elements corresponding to each of the challenged inventions, other than the inserted materials, and the elements corresponding to each of the challenged inventions, and their combination methods, are substantially identical as seen in the table below.

In the body of a permanent assembly (128,130) of a string-type permanent assembly (128,130) equipped with two wheelchairs (22) installed on both sides of wheel chairss (126) of the invention subject to confirmation of invention 1, 5 inventions described in the main body of this paragraph, which are installed and installed to surrounded by two wheelchairss (220) installed on both sides of wheel chairss (126), which are contained in the wheels in the main body of this paragraph, tring-type permanent assembly (128,130) equipped with wheel chairss (140) which generate electricity by a relative movement with permanent seat assembly (142) / Permanent assembly (230) which is installed in the 25-day permanent assembly and enclosed by an electric 20-day assembly-centered and enclosed by an electrical 250-day assembly-centered body which generates an electrical string (240-day assembly-centered) which is installed in the main body of this case.

In the case of an invention subject to confirmation of an invention subject to claim 5 of the table claims included in the main text, the light diode (18) diode (260) siode siode siode siode siode siode siode siode s

However, while the composition of the wheelchairs is specified in the claim 1 invention, there is a difference in specifying the composition of the wheel chairs. However, the invention in question is a component installed inside the wheel chairs, and the invention in question is also a combination of light wheelchairs centered on the composition of the wheel chairs. Accordingly, the difference is merely a difference in the simple method of expression.

In addition, according to the claims in the claims 5, a light saryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryaryary

(b) Preparation for compositions established as materials inserted with permanent stone assembly;

As seen in paragraph 1 of the preceding 4.b.(1), the composition that can easily be inserted from b50 Huban(250) by removing bending (220) and b.214 of the invention in question is also characterized by removing bending (220) and b.14.

Therefore, the claims 1, 5 inventions and the challenged inventions are identical in terms of the composition of inserted materials.

C. Preparation for the scope of “self-debrising hub” of the invention in question and the scope of “buffer” of claims 1 and 5

(1) Preparation for the composition of a buffer (130) of the challenged invention in question and the claim 1 and 5 claims;

특허발명의 완충기(130)는 휠액슬(122)과 영구자석(128) 사이에 설치되고 영구자석(128)과 함께 영구자석조립체(128, 130)를 구성하면서, 영구자석(128)을 충격으로부터 보호하는 역할을 한다(갑 제2호증의 2, 5쪽 33∽34줄). 한편, 확인대상발명에는 완충기(130)와 직접적으로 대응되는 명칭을 갖는 구성요소는 없다.

However, according to the description of the challenged invention, it is difficult to view that the buffer (130), location, combined method, effect, etc. of the claim 1 and 5 inventions are similar, as the bridge (130) is installed between the permanent stone (232) and the permanent stone assembly with the permanent stone (232).

Accordingly, the following is examined as to whether a self-defluence (234) of the invention in question falls under the scope of the right as an equal object of the buffer (130) of the claim 1 and 5 inventions.

(2) Criteria for interpreting the claims of a patented invention and determining the scope of rights

The scope of the right to a patented invention shall be determined by the claims described in the specification attached to the patent application, and where the technical scope is apparent only by the description of the claims, in principle, it shall not be interpreted to limit the claims by other description.

However, in a case where a part of an interpretation that is included in claims is not supported by the detailed description of the invention, or where an applicant appears to exclude part of the claims from the scope of a patent right, etc., if interpreting the claims as it is clearly unreasonable in light of the different description in light of the different description of the specification, it is possible to limit the scope of a patent right by taking into account the other description of the application and other legal stability of the applicant’s intent and third party (Supreme Court Decision 2001Hu2856 Decided July 11, 2003).

(3) Interpretation of limiting the scope of the right to buffers of claims 1 and 5

(A) According to the detailed description of claims 1 and 5, with respect to the background leading up to the adoption of a buffer (130) as a component, the composition, combination method, and effects of the buffer (130) are as follows:

① As prior art in the case of the U.S. Patent 5,580,093 (Invention 1), there is a example in which luminous mechanisms are installed on the wheel wheel of roller scam, which is a human body, but there is no protective device for permanent scam from the shock during driving of ... (Omission of entry) due to the lack of a protective device for permanent scams, but it is easy to use scamscams and permanent scamscams, such as scamnisium or scamscams, which are weak for shock, so it is difficult to use scamscams and scamscams and scamscams, such as scamnisium scams and scamscamscams, which are relatively high in resistance, and there is a st

(2) another technical task that wishes to form a patented invention is to employ a structure that absorbs shocks the shock of a permanent wheel assembly which constitutes a wheelchairs, and to simplify the overall structure and provide ... (Entry omitted), with the structure of an organizational structure, stability, physical safety, commercial economic feasibility and productivity improved.

(3) A permanent stone assembly shall be provided with a buffer machine (128) where permanent stone (128) and permanent stone are assembled. A buffer machine (130) shall be installed between wheelchairs (122) and permanent stone (128) so as to protect permanent stone from shock. In this end, a buffer machine (130) shall be installed on the surface of the buffer (134) so as to absorb shocking both sides by putting on the wheelchairs (122) and cutting on both sides. It is desirable that this buffer machine (130) forms a buffer machine (132) on the surface to absorb shock shocking impact on permanent stone.

(4) Permanent stone assembly consists of a buffer (130) equipped with a buffer (132) with a buffer (130) with a buffer (130) with a good breathic material, and a buffer (130) with a permanent buffer (128) with a structure with a structure with a buffer (130) with a buffer (130), which has a structure with a buffer which has a structure with a buffer which has a buffer (130), and a buffer (130) is formed so that permanent buffers do not deviate from a buffer weather. In this case, a buffer (131) is set up to a buffer space (131) for the purpose of clarifying buffer effect from an external shock between Buffer Day and permanent tin. Accordingly, as such, it can prevent damage to permanent buffer (128) by means of a buffer dog (132) and thus, it can prevent damage to permanent tin’s breathic, but not only a strong.

According to the above contents, there was no separate damage protection device that protects permanent tin from shock, but the patented invention has resolved such technical tasks by employing a structure that absorbs the shock that is caused to permanent tin, while explaining the buffer machine (130) formed with a shock absorption structure (132) and secured for a buffer space (131). However, the detailed composition of the buffer machine, including the buffer dog, is written as the scope of the right to claim 2 (not the claim 1 and 5).

On the other hand, the buffer (130) stated in the claims 1 and 5 claims is not limited to the composition of buffer (132) formed as the buffer period of claims 2, and the buffer (131) is not limited to the composition secured by the buffer (131), and there is no specific structure or device to protect permanent seat from shock.

(나) 한편, 특허발명이 선행기술로 인용한 비교대상발명 1의 상세한 설명과 도면에 의하면, 비교대상발명 1의 자석허브(42)는 휠액슬(27)에 관통되어 영구자석(26) 사이에 설치되고 영구자석(27)과 함께 휠허브조립체(14)를 구성한다. 또한 자석허브(42)는 CPVC(Chlorinated Poly Vinyl Chloride) 재질로 함이 바람직하다고 되어 있다(갑제5호증 컬럼3, 40∽42줄).

Furthermore, the self-defluence (234) of the challenged invention is composed of PVC materials such as PC (Pholycarbon), PBT (PP), PP (PP) (see the above 4.b. (1)). The carbon coefficient of the aforementioned PC, PBT, and PP located is the average level of approximately 1.9GPa, 2.3GPa, 2.5GPa, and 2.5GPa, and thus, it is much more carbon than the strong metal that is the location of the wheelchairs (No. 8, 9, and 10) wheels (No. 210).

However, since the CPVC, which is located in the self-defluence (42) of the comparable invention 1, belongs to the wide meaning of PVC materials (see subparagraph 5, e.g., the content of 12.9 MICELOOO PRCS) and the carbon coefficient in the CPVC is also likely to be similar to the scope of the carbon coefficient in PC, PBT, and PP materials.

(C) If so, in order to solve the technical task that there is no device to protect permanently breath in comparable inventions 1, which is an existing technology, there is no device to protect the buffer, it is suggested that the buffer structure of claims 1 and 5 is weak to shock. ② The claims 1 and 5 claims claims are merely expressed functionally functionally, and there is no explanation about the detailed buffer structure (other than the buffer structure of claims 2). ③ If the purpose of employing a buffer machine manufactured as “special material” for shocking the shock in claims 1 and 5 inventions, it should be explained in detail, but there is no content or suggesting the buffer structure of the Claim 1 and 5 inventions, ④ The claims buffer structure of comparable inventions 1 and 5 claims 5 are not limited to the buffer structure, and there is no more specific buffer structure than the buffer structure than the buffer size of the buffer structure than the buffer structure of the 2nd invention.

Therefore, the claim 1 and 5 inventions cannot be seen as falling under the scope of the right of buffer machine(130) of the invention in question.

(4) Determination as to the defendants' defense disputes

As to this, the defendants asserted that the buffer (130) is equal to the buffer (130) protecting the permanent seat of the invention in question on the ground that the breab (234) materials of the invention in question have a relatively much more carbon coefficient than the wheelchairs (210) of the steel materials.

However, if the functional description of the buffer machine among the claims 1 and 5 claims is interpreted broadly only literally, it may be interpreted that all of the materials of wheel slicks are included in the buffer machine of claims 1 and 5. Considering the contents and specifications different from the technical engineer of the patented invention, and the legal stability of the applicant's intent and third party, it is determined that the broad interpretation of the claims can not be allowed unfairly.

Therefore, the above assertion by the defendants is without merit.

6. Conclusion

Thus, the invention in question does not fall under the scope of the right to claim 1 and 5, and the decision of different conclusion is unlawful.

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Cho Yong-ho (Presiding Judge)