Defendant

Defendant

Freeboard Kim

Attorney Woo-soo (Korean National Assembly)

Seoul Central District Court Decision 2008 High Court Decision 618, 1187 decided Feb. 11, 2009

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

① Since the Defendant committed the instant act before the invalidation of the Defendant’s patent invalidation confirmation, it cannot be readily concluded that the victim’s fluor infringed the Defendant’s patent, or that the victim was well aware of the fact that the Defendant did not infringe the Defendant’s patent at the time of the Defendant’s act. ② Since the Defendant committed the instant act in order to protect the Defendant’s patent right, there is no purpose of slandering the victim. ③ As long as the Defendant was aware that it was false, it cannot be said that the Defendant interfered with the Defendant

B. Legal principles

① Since the content of defamation through information and communications network is not false, and there is no purpose of slandering, it shall be subject to Article 307(1) of the Criminal Act, which is not the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, rather than the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection. ② Defendant’s act of sending content certification to the representative of Nonindicted Co. 5 Company and to the Seoul Total Director of Information and Communications Network, a distribution company, was a statement of fact about a specific person, and there was no possibility of dissemination in light of the fact that such act may interfere with the distribution of the content, and the public performance cannot be recognized in relation to defamation by sending content certification. ③

C. Unreasonable sentencing

In light of the fact that the Defendant committed the instant crime to protect his patent right, and that the Defendant did not have any particular criminal record, the lower court’s punishment is too unreasonable.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

(1) As to the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection (Defamation)

(A) Whether false information was revealed

If a trial decision invalidating a patent becomes final and conclusive, the patent right is deemed never to have existed, unless it falls under Article 133(1)4 of the Patent Act (see Article 133(3) of the Patent Act). Therefore, even if an act infringing another person’s patent was conducted before the trial decision invalidating the patent becomes final and conclusive, if the subsequent decision invalidating the patent becomes final and conclusive, the patent would have never existed from the beginning, and such act cannot be deemed as a patent infringement.

According to the records, the Patent Trial and Appeal Board rendered a decision that the patent should be invalidated on May 1, 2007 with respect to the defendant's "the plaintiff's "the plaintiff's "the plaintiff's "the plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff'

(B) Whether the allegation of false facts is recognized

Before the decision on invalidation of a patent becomes final and conclusive at the time of the act, the Defendant asserted to the effect that the victim was well aware of the fact that he did not know that he did not infringe the Defendant’s patent. However, in light of the following circumstances acknowledged by the record, the Defendant had already been issued a decision on invalidation of the Defendant’s patent at the time of the act, i.e., the Defendant had made the Defendant’s product by reproducing the support unit, which is the core of the Defendant’s patent, and thus, the Defendant infringed the Defendant’s patent right. However, the Patent Tribunal rendered a decision that the Defendant’s patent should be invalidated on the ground that the Defendant’s patent invention could be easily patented from the previous invention, compared with the previous invention, on the ground that the effect of the fact that the Defendant’s patent invention was broom away from the patent, utility model, and design registration, even though the victim manufactured the product differently from the previous invention, it is reasonable to deem that the patent invalidation decision was final and conclusive, but the Defendant was aware that the Defendant did not have infringed the patent.

(C) Whether the purpose of the offense is to slander

According to the records, the defendant's act is recognized as being due to the intention or purpose of the damage to the victim, and the defendant's act is recognized as being the purpose of slandering because it is attributable to the intention or purpose of the damage to the victim, even though there was a trial decision to invalidate the defendant's patent in the process of resisting the product similar to the defendant's product.

(2) As to defamation caused by dispatch of content certification

(A) The indication and recognition of false facts

The defendant's act in this part is recognized to have indicated false facts in recognizing that the defendant was false for reasons of violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection (Defamation).

(B) Whether performance is performed or not

Public performance, which is the constituent element of the crime of defamation, refers to the state in which many and unspecified persons can be recognized, and even if a fact is publicly known to one person, if there is a possibility of spreading it to many and unspecified persons, it meets the requirements of public performance. According to the records, the defendant sent a certificate of contents demanding the suspension of production and sale, agency closure, etc. to the representative of the enterprise that sells the victim's product. The defendant also seems to have intended to suspend sale by notifying the agency, etc. that the victim infringed the defendant's patent right. Thus, the possibility of dissemination is not denied merely because the other party who sent a

(3) As to obstruction of business by fraudulent means

The crime of interference with business under Article 314(1) of the Criminal Act is established when a person interferes with another's business by deceptive means or force. The term "defensive means" in this context means causing mistake, mistake, or land to the other party in order to achieve the purpose of the offender's act, and using it. As seen earlier, the defendant notifies the person who has purchased or intends to purchase the victim's product and the representative of the company that sells the victim's product, of the fact that the victim infringed the victim's patent right, and notified the defendant of such false fact on the Internet bulletin board of the defendant's internet homepage that many and unspecified numbers

(4) Whether Defendant’s act constitutes an act that does not contravene social norms

As seen earlier, the Defendant stated false facts for the purpose of slandering the victim, and made a false statement on the bulletin board available to unspecified multiple, or made a false statement to many persons related to the sale of the victim’s products, even though they could cope with the victim’s infringement by taking legal measures against patent infringement, etc.

B. Determination on the assertion of unfair sentencing

In light of all the sentencing conditions, such as the background, motive, method, age, character and conduct of the defendant leading to the crime of this case, the sentence of the court below is too unreasonable.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act as it is without merit. It is so decided as per Disposition.

Judges Lee Jae-tae (Presiding Judge)