In a case where a trial decision invalidating a patent has become final and conclusive in another case while a lawsuit seeking revocation against a trial decision invalidating the patent becomes final and conclusive, whether the said revocation lawsuit becomes unlawful (affirmative)

Article 133(3) of the Patent Act

Supreme Court Decision 2003Hu946 Decided April 9, 2004, Supreme Court Decision 2006Hu2714 Decided January 26, 2007

Plaintiff, Ltd.

Defendant Co., Ltd. (Patent Attorney Go-con et al., Counsel for the defendant-appellant)

Patent Court Decision 2005Heo10978 Decided December 7, 2006

The judgment of the court below is reversed, and the lawsuit of this case is dismissed. All costs are borne by each party.

Judgment ex officio is made.

According to the records, in the instant trial seeking the invalidation of a patent of the patented invention of this case (Patent No. 465463), a trial decision dismissing the relevant claim (Patent Tribunal No. 2005Da906, Nov. 29, 2005) was rendered, and the Plaintiff’s claim was dismissed even in the instant lawsuit seeking the revocation of the trial decision, and is pending in the court of final appeal on Jan. 30, 2007, in which the Plaintiff sought a trial seeking the invalidation of the patent of this case, the Patent Tribunal rendered a trial decision invalidating the patent of this case (Patent No. 2009) (Patent No. 463) (Patent No. 463), and the trial decision becomes final and conclusive on Apr. 19, 2009. Thus, if the trial decision invalidating the patent becomes final and conclusive, the patent right of this case is deemed not to have existed from the beginning, and as a result, the patent decision of this case cannot be seen to have been invalidated as unlawful and void.

Therefore, the judgment of the court below is reversed because it cannot be maintained in this respect, and it is sufficient for the court to directly judge this case. Thus, it is decided to dismiss the lawsuit of this case and to bear the total costs of the lawsuit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)